Be sure to find the time to review Professor Larry Solum’s updated entry for his Legal Theory Lexicon on “Libertarian Legal Theory.”
From the introduction:
Normative legal theorists of all stripes — conservatives and liberals, welfarists and deontologists — tend to agree that the institution of law is fundamentally legitimate and that the legal regulation has a large role to play. There is, however, a counter-tradition in legal theory that challenges the legitimacy of law and contends that the role of law should be narrowly confined or even eliminated.
Solum breaks down the review as follows:
I. Historical Roots of Contemporary Libertarianism
–John Locke and the Social Contract
–Kant and Spheres of Autonomy
–John Stuart Mill and the Harm Principle
–Others (Spencer, Godwin, Prodhoun, etc.)
II. Theoretical Foundations of Libertarianism
–Consequentialist (John Stuart Mill, Adam Smith, Richard Epstein)
–Deontological (Robert Nozick)
–Pluralist (Randy Barnett)
III. Libertarian Agendas for Legal Reform (or Revolution!)
–Modest: Deregulation, Privatization, and Legalization
–Comprehensive: The Night-Watchman State
–Revolutions: Anarchy and Polycentric Constitutional Orders
IV. Rivals of Libertarian Legal Theory
–Egalitarianism
–Aretaic Political Theory
Long-time readers, especially my fellow libertarians, know where I fall within this framework: I’m a Lockean in the property rights sense, but not so much in the “social contract” sense.
I reject, utterly and with limitless contempt and disgust, all forms of utilitarianism and consequentialism — even those used to justify libertarianism and capitalism, mainly because I refuse to pretend that I don’t understand the Arrow Impossibility Theorem and especially the impossibility of interpersonal utility comparisons.
I am instead a deontological libertarian, but I am also attracted to Barnett’s reality-based theory of governmental legitimacy (or illegitimacy) deriving from the inoffensiveness (or offensiveness) of the government’s structure and actions.
I am also of course in the “Modest: Deregulation, Privatization, and Legalization” camp (I prefer the term “libertarian incrementalist”), though I would gladly embrace the (Randian version of the) “Night-Watchman State” if I thought it were possible. So, for example, I waste little or no time yearning for a legal framework in which the Civil Rights Act was never passed or where “government gets out of the marriage business,” instead demanding that if the government is going to act, then it must at least act rationally (i.e., equally and fairly) toward all affected. If you can’t fight bad laws, then at least fight laws being applied badly.
What about you? Where do you fit in this paradigm?
Previously:
–Solum on Law and Libertarianism
–From the Archives: “Strict Construction” versus “Judicial Activism” … versus Reality
–From the Archives: On Gays and Democracy
3 responses so far ↓
Link unacoder // Nov 3, 2008 at 9:08 am
i consider myself to be an incrementalist (pragmatic libertarian) as well, if for no other reason than to remain relevant in discussions with other people. while i agree that we should focus short-term on the struggle to apply laws in an equal manner (no on 8), i don't think we should lose sight of the goal of getting government out of the marriage business. (i'm not a fan of the term "fair," since it leads many people to torture the idea of equality.) how else would you know what incremental change to make when you have no roadmap?
Link Windypundit // Nov 3, 2008 at 2:04 pm
In Solum's taxonomy, I'm a modest pluralist with admiration for Mill's Harm Principle, Locke's property rights and Kant's autonomy. This is probably just a way of saying I haven't paid much attention to the history and Great Names of libertarianism.
Your utter rejection of utilitarianism confuses me. We can't directly measure our respective utility, but surely the fact that you have a dog and I have cats reveals something about the relationship between our utility functions for pets? And given this revealed preference, we can construct a social mechanism—the free market—to improve social utility even if we can't directly measure it.
Like the unacoder, I regard the Night Watchman State a good goal, but I'll settle for less as long as we can make it better than it is now. For example, while deontology and utilitarianism can be in conflict, I believe our current system has many features which are repugnant to both—rent control, ethanol subsidies, the war on drugs.
I'm even willing to sneak in a little redistribution by way of Rawls and regulation by way of Leitzel's robustness criteria.
Link Terrence Watson // Nov 3, 2008 at 3:09 pm
I'm a modest pluralist, but generally a Kantian when it comes to articulating the basis for libertarian constraints. I just don't think that the moral law provides all the moral reasons that there are.
People have rights. Those rights provide me with powerful reasons to refrain from treating them in certain ways. The problem is that there are other reasons to act — genuine, moral ones — that can conflict with the requirements of the moral law. That's what makes me a pluralist.
The project of liberalism — of which libertarianism is one variant — is to explain the relationship between the reasons of right, as rooted in the moral law, with the reasons of the good, as articulated in the various, defensible conceptions of the good found in western society.
Why respect the rights of others (e.g. to think and believe what they wish), even when this means they'll be living worse lives, as judged by your conception of the good?
This is why consequentialist arguments seem indispensable to me. I may not be able to explain why, in each and every case of conflict, the right ought to trump the good.
But if I can explain to you why putting peoples' rights prior to any view of the good, including yours, would, in the long run, best advance your conception of the good, as well as mine, (and Jones', and Smith's, etc.) then I've got a decent argument in favor of libertarianism that doesn't require someone to take on board natural rights or Kantian metaphysics as a starting point.
I think the insights of public choice economics can provide groundwork for such a case. But you have to do it in roughly consequentialist terms (Gerry Gaus calls this a "constrained teleological justification" in one of his books; Jan Narveson would likely view it as essentially a contractarian kind of argument.)
Notice that the argument doesn't require much in the way of interpersonal comparison. Give the people in Rawls' original position access to public choice, and they're likely to acknowledge that, almost no matter what conception of the good they hold, it won't be well served by a meddling state bureaucracy.
Best,
Terrence