The foundations of liberty.

• Date: 01 May 1999
• Author: Solum, Lawrence B.

THE STRUCTURE OF LIBERTY: JUSTICE AND THE RULE OF LAW. By Randy E. Barnett. Oxford: Clarendon Press. 1998. Pp. xi, 347. $29.95.

INTRODUCTION

Randy Barnett's The Structure of Liberty(1) is an ambitious book. The task that Barnett sets himself is to offer an original and persuasive argument for a libertarian political theory, a theory that challenges the legitimacy of the central institutions of the modern regulatory-welfare state. The Structure of Liberty is that rare creature, a book that delivers on most of the promises it makes. Already the book is on its way to becoming a contemporary classic, the successor in interest to Robert Nozick's Anarchy, State and Utopia as a source of ideas and arguments for the revitalization of an important intellectual tradition that has long stood at the periphery of legal and political theory. No one will be surprised that Barnett's argument rests on a controversial and contested vision of human interaction. What may come as a shock is the power of this vision to provoke a thoughtful response from readers with ideological and political commitments that are poles apart from those articulated in The Structure of Liberty.

One of the great virtues of The Structure of Liberty(2) is that it is written with an unusual clarity of expression. Structure avoids a central vice of much contemporary political philosophy: the book is filled with concrete examples and specific public policy proposals. At the same time, Structure embraces the central virtue of modern political theory; the argument is carefully articulated so as to lay bare the bones of the ideas and expose them to careful scrutiny. Barnett has written a readable book that nonetheless will repay careful study.

Despite Structure's many strengths, the book is not without its flaws. Chief of these is the book's avoidance of fundamental questions about the nature of political justification. Barnett attempts to craft an argument that eschews reliance on any particular framework for political and moral theory. The result, however, is a work that neither embraces deep foundations nor provides a compelling explanation for their absence. For this reason, the full implications of Structure are cloudy, and a final assessment of its merits requires an excavation of its foundations -- an effort that is begun but hardly completed in this review.

What is certain is that Structure provides a rich and provocative set of arguments that will stimulate strong reactions from both the friends and foes of its intriguing mix of classical liberalism, libertarianism, and anarchism. Structure is filled with radical proposals, ranging from the abolition of criminal punishment to the suggestion that private adjudication and law enforcement services could replace the state entirely. Barnett defends these suggestions with common-sense ideas that are assembled into a powerful theoretical framework. Even if Structure does not convert the heathen, it will surely change the topic of many conversations about the proper function of law.

1. THE STRUCTURE OF STRUCTURE

   The central argument of Structure aims to justify a set of ideas about fair social organization. Barnett calls these ideas "the liberal conception of justice" (p. 63). The argument for the liberal conception focuses on three central problems of human interaction: the problem of knowledge, the problem of interest, and the problem of power. Barnett argues that given "the goal of enabling persons to survive and pursue happiness, peace, and prosperity while living in society with others" (p. 23), these fundamental problems of human interaction create constraints on the possible forms of social organization. Unless society is organized to respect rights of several property, freedom of contract, restitution, and self-defense, the problems of knowledge, interest, and power will make it impossible for all persons (or each and every person) to survive and pursue happiness, peace, and prosperity. Barnett's liberal conception of justice is simply a detailed formulation of the content of the rights that must be respected.(3) Near the conclusion of Structure, Barnett imagines a society that respects these rights to the hilt, a polycentric constitutional order in which the state has withered and been replaced by private associations which provide what economists have traditionally called "public goods," such as police protection and dispute resolution.

   1. Foundations

      If the central argument of Structure is the justification of the liberal conception of justice based on the problems of knowledge, interest, and power, the first chapter is Barnett's attempt to build the philosophical foundation upon which this justification rests. This chapter is perhaps the least satisfying in the book, and the issues that it raises will be examined later in this review. The central organizing idea is the notion of a natural right. Borrowing terminology from Philippa Foot,(4) Barnett argues that natural rights are justified by a "hypothetical imperative" (p. 17). As laid out by Barnett, the hypothetical imperative includes both a normative and a factual predicate. The normative predicate is the goal of providing each individual with the opportunity to pursue happiness, peace, and prosperity. The factual predicate is provided by Barnett's development of the problems of knowledge, interest, and power. The conclusion or imperative is the set of rights that Barnett specifies in his liberal conception of justice, e.g., several property, freedom of contract, restitution, and self-defense.

      Asking the following question can draw out an important ambiguity in Structure's foundation: to whom is the hypothetical imperative addressed?. One possible answer is that Structure is addressed to the interest of each and every actual individual in peace, prosperity, and happiness. If this is the case, then the argument of Structure must meet an extraordinarily high burden. Surely there are some individuals who are advantaged by legal regimes that restrict property and contract rights: one example might be highly placed members of the nomenclatura in the former Soviet Union. Another possibility is that the argument of Structure is addressed to hypothetical individuals behind a Rawlsian veil of ignorance(5) as to their present circumstances. If Barnett intends his argument to rest on this sort of contractarian premise, then Structure fails to acknowledge the many criticisms that have been leveled at this form of political justification. Yet another possibility is that the hypothetical imperative is addressed to society as a whole. For example, it might be the case that the argument of Structure is based on a utilitarian principle of the greatest "happiness, peace, and prosperity" for the greatest number. If Structure rests on this sort of consequentialism, then Barnett owes us an explanation for Structure's failure to deal with the many objections to consequentialism raised by moral and political philosophers. These foundational questions are important, and they will be taken up again, after this brief overview of the structure of Structure has been completed.

   2. The Method of Structure

      After the first chapter, most of Structure is devoted to the development of the thesis that the liberal conception of justice is the best solution to the problems of knowledge (chapters 2-6), interest (chapters 7-9), and power (chapters 10-14). A preliminary word about the method of Structure may help to clarify the nature of Barnett's claims and his arguments for them. The central claims of Structure are empirical. Barnett argues for the existence of the problems of knowledge, interest, and power on the basis of evidence about the nature of human beings and their social interaction. How does Barnett support these empirical claims? For the most part, the answer to this question is not through the use of social science research or history. Rather, Barnett's method is primarily to appeal to common-sense premises that are likely to be widely shared. Some readers may object to this method on the ground that it is insufficiently rigorous, There is certainly something to this objection. Before we make radical changes in social organization on the basis of Barnett's arguments, we would surely want to subject his empirical premises to the most rigorous testing, employing all of the resources of social science to the extent that they would provide useful confirmation or refutation of Barnett's views. Nonetheless, Barnett's method stands in an important tradition of social thought. Some of his armchair observations about human nature rely on the same sort of insights as did similar observations made by Thomas Hobbes and Adam Smith. Some of the empirical premises of Structure might be viewed as plausible hypotheses as opposed to proven conclusions. Some of Barnett's premises are, in fact, unassailable on empirical grounds. For example, it is obviously true that each of us has empirical knowledge about our own circumstances that is not shared by total strangers (p. 31); social science will have little to add concerning the truth of such premises.

   3. Knowledge, Interest, and Power

      Much of the merit of Structure lies in its detailed development of Barnett's central thesis -- that the problems of knowledge, interest, and power require the liberal conception of justice, given the goal of providing each individual with the opportunity to pursue happiness, security, and stability. Not only does the development of the problems of knowledge, interest, and power account for the lion's share of Structure's text; this exposition is the heart of Barnett's argument. The success or failure of Structure lies in Barnett's ability to persuade readers that these are serious problems and that no form of social organization can succeed unless they are overcome.

      1. Three Problems of Knowledge

         The first cluster of problems of social interaction, Barnett calls "[t]he [p]roblems of [k]nowledge"...