Wednesday, January 21, 2015
Richard Epstein's Intellectual Autobiography
Look what I found! From I Chose Liberty:
I have been asked to comment briefly on the formative influences that have led me to fall into what may be generally called the libertarian camp. I use this term with a certain amount of caution because, like all great concepts, it has attracted multiple meanings that can easily impede analysis. Many individuals regard themselves as civil libertarians. To the logically minded, this group looks like a subset of the broader libertarian camp, with a special emphasis upon such non-economic activities as speech, religion and sexual conduct.
While, by and large, this capsule summary offers an accurate description of civil libertarians, it overlooks the fact that many of these same civil libertarians actively support the extension of improper government regulation into economic areas. They think it appropriate to believe in freedom of association for religious groups, or for same sex couples, or gay marriage, but at the same time support the strong imposition of anti-discrimination laws in economic matters. My libertarianism runs deeper and includes both economic and noneconomic behavior under a common umbrella.
There is a second sense in which my libertarian instincts are less insistent than those of many modern libertarians. To most libertarians the constant theme is some variation of Mill’s famous Harm Principle: that the minimal state should protect only against the use of force and fraud. Libertarians are in general quite optimistic about the ability of ingenious negotiators to overcome various hold-up and coordination problems that crop up in any complex social setting. They therefore reject, or seriously curtail, state powers of taxation and eminent domain. My own view is that some limitations on both these (interrelated) powers is surely appropriate, and that it smacks of libertarian Utopianism to think that all coercive force can be eliminated from collective life. The decision of the conscious libertarian to avoid governance and to exalt voluntary alliances could lead to strong conflict situations in which gangsters set up the new territorial government by wiping out their adversaries. Government there will be; libertarians should try to set it up so as to limit its collective scope.
So what then is the core of my libertarian beliefs? Here I would organize these around some very familiar watchwords: individual autonomy, as self-rule, but not unconstrained by the rights of others; private property, with an eye to the commons; freedom of contract, with an eye to externalities; limited government, with a fear of excessive concentrations of power.
But on most ordinary social interactions, including the full array of two-party relationships— buyer-seller, landlord-tenant, employer-employee, insurer-insured; partner-partner—contract should ordinarily be king. And while we have to tolerate the use of state coercive power to build highways, we should work hard to keep government out of private employment and property transactions. No minimum wages, no (or very few) safety regulations; no anti-discrimination laws; no labor statutes; no rent control; little (strictly guarded) zoning; no crazyquilt subsidies to peanuts or raisins; no trade barriers against low-priced imports, and the like.
This is a small government relative to what we do today. At a guess, we can cut out well over half of government functions and curtail or contract out many others. All this leaves us with a state that is larger than many defenders of a pure libertarian order might wish. Police and military remain; roads, sewers, telecommunications and electric will all have some level of government ownership or control; the inevitable tax, motor vehicle, voting, and land, copyright and patent lists will need constant upgrade and servicing; as will intellectual property. But the hope is that a small government will yield more sensible interventions of these key areas.
Mine is a more cautious classical liberalism. But it is sufficiently far removed from the mainstream to warrant inclusion under the broader, somewhat ill-defined banner of classical liberalism, or limited government libertarianism.
What then brought me to hold this peculiar set of beliefs? Normally one looks for profound personal experiences that show the evils of government intervention. But as a New York boy who flourished in the excellent public school system of the late 1940s and 1950s, first in Brooklyn and then in Great Neck Long Island, I can report no such tales. I received a fine education from public institutions that was, for the most part, remarkably free of various forms of indoctrination, at least for a youngster who did not realize he was singing about race relations when he belted out at age seven, “You get white milk from a brown skin cow, the color of the skin doesn’t matter no how.” Nor can one find in my background any powerful figure who championed the cause of limited government. My parents were both born and raised in New York City, and like most members of the Jewish upper middle class were (and in the case of my mother, is) a basic, New Deal liberal who shares a deep suspicion of big business and the Republican Party in equal measure—wise judgments in both cases. My friends and relatives ran the gamut of sentiment, and there were few who had any extreme views on politics, let alone political theory, although all believed that success depended on a combination of brains, luck, character and hard work.
To be sure, my uncle Sammy did have a friend who was a strong social Darwinist who inveighed against how charity weakened the spine of the system, but he died, tragically, from a bee sting, which always seemed to me to warn against the perils of excessive individualism. Besides, libertarians support voluntary contributions to the poor and would never ban them because of some indirect harm to the long-term fitness of the species.
So where then does all this come from? Here I would point to two ingrained intellectual attitudes that helped shape my views. I call these ingrained because I cannot remember a time when I had a different intellectual orientation. First, I dislike complex and sophisticated explanations of routine phenomena. I have no claims to be a mathematician or a physical scientist, although I studied both fields with at best modest distinction in some detail, all the way through college. Yet what I liked was the parsimony of the explanations, and the search for general laws that linked together patterns of events or behaviors that looked at first to be wholly disparate.
In the same vein, I have always been a champion of the naïve point of view on every philosophical topic—and these I did study in some depth—from metaphysics to epistemology to psychology, and on to ethics. Never once did I flag in my belief in the external world because of the learned demonstration of how knowledge is acquired through the senses which may, therefore, be all that we have. This suspicion against “deep” and sophisticated truths has always led me to embrace theories that accentuate order in natural events and social behavior and look down on all anomalies regardless of source unless they offer a window into a more powerful general theory. For example, my instincts run against the quirky results of behavioral economics with their appeal to instability of individual preferences.
I have not seen many people act in strange ways and think that a few robust assumptions about rationality and self-interest explain a lot more about how legal rules and social institutions operate than any highly ad hoc or contextual explanation. I regard arguments for pragmatism or relativism, whether in the world of action or ideas, as signs of intellectual weakness, which function as poor excuses for having nothing intelligent to say about a given problem. There is nothing particularly reasonable about an appeal to reasonableness, without guides. Rules should come first, and complex balancing only at the margins.
That view of truth influences one’s view of legal rules. If there is little reason for ad hoc justifications in the domain of metaphysics, then it is best to be cautious about the use of similar strategies in social arguments. If there are broad general truths, then the instinct to compartmentalize should be greeted with some suspicion. Hence the modern view to find a particular statute for every occasion cuts against the aesthetic view of the fundamental unity of the legal order. It is the same fascination with ad hoc judgments that gets in the way of a firm understanding of the regularity of empirical phenomena. One reason why the Supreme Court has tolerated so much chaos in the law of takings, for example, is that it has persuaded itself that it can do no better than form “ad hoc” judgments as to what is or is not permissible. Aim low, and you will never get things right. The libertarian penchant for flowing generalization is a strength. Although it is not the last word, the libertarian attempt to express legal propositions in sweeping terms that purport to maximize the like liberty of all persons consistent with the liberty of others, is a starting point for further refinement that speaks against narrow rules that open up the opportunity for favoritism or vice. The constant concern with the minimization of force and fraud seemed to create a nice, virtual, deductive program that fit my own metaphysical presuppositions. My naïve faith in the basic order of natural and human affairs has led to a distaste of special rules, and an affinity for the generalizations that lie at the core of the libertarian system. Politics had, and has, nothing to do with it.
These intellectual tendencies did not always come out at a young age. One reason I like tidy rules is that I am so messy in keeping my own papers together. But throughout school the emphasis on reading, writing and arithmetic did not conduce to the study of political philosophy or law, and I turned to these areas for the first time only in my senior year in high school when one of my teachers, Franklin Watson, fresh from a tour of duty at Brown University, assigned to us the Mentor Philosophy Volume on the Age of Enlightenment edited by Sir Isaiah Berlin. Reading Locke, Berkeley, and Hume on the sensations and the passions and the relationship of ideas to facts did pique my interest, and I quickly learned that it was easy to go astray in dealing with philosophical questions by taking too sophisticated a tack about fundamental relationships. I always believed, for example, in the strong distinction between logical and empirical truths, and with time came to believe that anyone who thought his own political philosophy rested on necessary truths was, well, necessarily wrong.
It was only in college, however, that I was forced to read large chunks of the canon in a more or less systematic fashion. My teacher at Columbia College was a new professor named Paul Noyes who had studied history at Oxford (I think) on a Marshall Scholarship (I think) and, at a young age (he died much too early), had decidedly conservative views on issues that put him into sharp conflict with the liberal New York students placed in his charge. I can still recall when he defended ably the views of Andrew Ure on the virtues of the factory system against the passionate, if inaccurate, charges of literary types like Henri Balzac. He persuaded me that the routine transactions that worked were far more important than the thrilling narratives of weird cases that failed, and showed the link between world outlook on epistemological and political issues. After all, the factory laws were a major issue in the early 19th century which accounted for the first round of debates. The laissez-faire forces were widely derided for saying that only time could promote improvement in physical labor. But they were in large measure right. The regulations that were meant to protect workers and their families were often used to strangle their opportunities and one lesson that should be taken away from that debate is to always be aware of the private motives of individuals who trumpet various forms of legislation for the good it will bring to others. Too often, their own motivations lurk behind the apparent level of generosity. The teachers’ unions surely come to mind in this context today.
The college that I left in 1964 was quite different from the place that I entered only four years before. We all wore blue beanies on Morningside Heights during freshman orientation, and some of us wore tie-dye shirts (not me, I might add) or worse on graduation. In the interim I received a first class education in philosophy and sociology, with only a smattering of economics thrown in on the side. My most influential teachers were not particularly libertarian, but they were all hard-nosed. Ernest Nagel, the great philosopher of science, always defended common sense against its intellectual detractors, and taught me philosophy of law with the then new book The Concept of Law by H.L.A. Hart. David Sidorsky forced us to read Plato’s Thaeatetus, Descartes’s Mediations and G.E. Moore’s Ethics with real care. The last piqued my interest because I could not understand why anyone would care whether the good was a natural or nonnatural quality, but at least I became convinced, without really knowing why, that there had to be some connection between what was good, what was desirable and what was desired. Moore may not have had the right answers, but at least he had the right questions. And a dose of Sydney Morgenbesser on meta-ethics made it crystal clear that there was no easy going through the philosophical thicket. Arthur Danto was ingenious, but I thought always ultimately wrong because he preferred philosophical ingenuity to psychological information. And Daniel Bell, much my mentor, introduced me to sociology and political theory. His was a world of detail and nuance, but he did make it clear that, however Marx might have gone astray, he did understand at least one thing, namely, that there was no understanding politics without power.
This last message packed real punch, because the cloistered discussions within Hamilton Hall were not immune from the massive political pressures that were slowly building up both before and after the Kennedy assassination. Those were heady times, with the civil rights movement in full swing and the terrible events of Vietnam beginning to unfold. No one could fail to think about the problems of race and war, and I can recall the strong sense of support for the civil rights act as a powerful antidote to the evils of segregation in the South. But I can still remember as a junior sitting in Alan Westin’s government class, as student after student praised the colorblind nature of the proposed civil rights law while one of my former Great Neck school mates, Stephen Kahan, protested in his high-pitched voice that the new laws were defective because they overlooked the public/private distinction that everyone assumed was either unintelligible or obsolete. It was that initial comment that planted the seed of doubt that later became a full frontal assault on the antidiscrimination laws as they applied to private employers in competitive markets. I have since come to believe that the public/private line does not cover the full front, and that the question of market structure—monopoly, practical or legal, versus competition—also counts. But those refinements came only after those initial doubts about the scope of public power, doubts which at that time were not informed by any political theory.
That missing element of political theory came to me quite by accident at Oriel College, Oxford University where I studied law (for a degree no less) right after graduation from Columbia College. The Oxford legal education is quite different from the American, and at first blush it offered me little reason to expect that I should form a general world view while working in the stacks of the Oriel College library. The English had a narrow and constrained view of what constituted the proper subject of a legal education. In part this came because of the decisive division of power within the English framework, whereby the critical decisions were made in the Civil Service, away from the watchful eyes of judicial review. The bottom line, therefore, was that the development rights in the green belt around London could be nationalized by statute after World War II, and the diligent law student would only learn of the event because of some administrative law case that dealt with some technical point of judicial review. English socialism, as it were, did not depend on English courts to do anything other than to stand aside.
Equally important was the determined, non-theoretical approach of English education with respect to the common law materials we read. England is a unitary jurisdiction so that it is not unreasonable to expect that the budding lawyer will actually know “the law,” which is a real advantage in doing legal work. But the question of tying the law to first principles was not a central part of my mission, and my teachers over there thought that from time to time I was too relentlessly sociological and functional for my own good. But there was a reason for all this. The removal of the welfare state from the judicial curriculum, and the creation of a single legal system meant that in 1964 (before the great rise of statutes and the membership of Great Britain in the European Union), you read a lot of nineteenth century cases written by judges who had in some cases a very explicit classical liberal orientation and a range of curiosity that was in some sense broader than that demanded by the Oxford curriculum. So left to my own devices, with the occasional tutorial and lecture, I immersed myself in these materials and slowly became a convinced libertarian who saw in the common law a judicial outlook that was consistent with larger questions of political organization. Baron Bramwell, Lord Jessel, M.R. (a genteel title, for Master of the Rolls, or what we would call a big-time judge), Lord Bowen, Lord Blackburn were all formidable intellects with a real political orientation that led me to see the common law as a system of vested rights. And when I read the great cases on predatory pricing and union competition, it became clear to me that the connection between the common law and the great issues of the time was far more intimate than the formal curriculum had acknowledged. I got some glimpse of all this by reading some of the great English writers. Maitland’s History of English Law was a particular favorite, and he had an intuitive sense of how social institutions fit together. Hart and Honore on causation in the law was another favorite, but here for the philosophical insistence consistent with my earlier education that hard terms can be analyzed, a rule to which causation was no exception, if you paid attention to detail and proceeded to work through examples with the aspiration of understanding rather than confounding theory. I was no law and economics freak, to be sure, but the functional and the dogmatic were stewing around in my head. The question was how best to organize them.
And again the politics of the English system was a backdrop, but not a cause. My intellectual development came from study, not personal experience. Back in the United States, I returned to Yale. There I had strong teachers in a number of subjects, but found that I was in some sense intellectually isolated from the trendy world of Supreme Court decisions on the grand constitutional issues of the day. More to the point, at that time, the closeness to the English system actually left me something of a doubter of judicial review in the American style, in part because I saw that most of the innovations of the late 1960s were in the teeth of classical liberal values and not in its service. But the Oxford education served me in good stead because it gave me a point of reference with which I could compare the fads and fashions of modern law. It also meant that I had a point of view that let me think critically and independently of my strong-willed teachers. I had every intention of going into teaching, but no intention of being anyone’s disciple. What I needed to learn was to think about the complexities of the American system that went beyond my English background. I had to learn about systems of direct government regulation, which were wholly absent from the English curriculum, which was entirely oriented to the private law. I became much to my surprise something of an expert in taxation, which I taught extensively in my first ten or so years in academia. And I learned, chiefly from Ward Bowman (who to this day describes himself, wrongly in my case, as “not gone, but forgotten”) who introduced me to law and economics, Chicago style, where he had trained with Aaron Director.
In one sense Bowman was the strongest influence on my intellectual development because he was the one teacher who added tools to the kit that I had not used. As a pioneer in law and economics, he forced me to think about the consequences of social arrangements in ways that, frankly, started to undermine my strong, libertarian, deductive sense. He could explain why the antitrust cases miss the functional or efficiency justifications for various contractual terms, and started me asking why people entered into contracts in the first place. He was also a believer that monopoly was a wrong, which was not central (beyond contracts said to be in restraint of trade, narrowly construed) to my English background.
One day in class I pushed him hard and asked him if he thought that monopoly was equivalent to coercion, to which he replied yes. I told him, in so many words, that I thought he was nuts. But it started me thinking. Maybe monopoly was not coercion, but it was a problem worth thinking about. It is a problem that comes up all the time with everything from common carriers, to licenses to constitutional law. And it took me years to figure out that monopoly may be bad but that coercion is still worse, which seems both obvious and profound even as I write it.
So armed it was off to teaching at the University of Southern California. The day I arrived I met Michael Levine and Lou Brown in Dorothy Nelson’s office. Lou had been an expert in what he called preventive law, which asked one question: how do you get the deal right in the office in order to avoid litigation thereafter. He knew all this material because his wife, Hermione Brown, was a leading trust lawyer in Los Angeles, counting among her clients the stars of Los Angeles, for whom if you drafted an irrevocable inter vivos trust, you could do it only once. She taught me the fundamental principle of contract through a bit of street wisdom. “You know that a contract is fair, if it leaves both sides happy at formation.” To which she added, “and you know that a settlement is fair if both sides are unhappy.” Deals are positive games that are Pareto improvements. Settlements are negative sum games relative to initial expectations, but positive relative to the abyss that would otherwise lurk ahead.
But Michael Levine, for his part, was relentless in his belief of the price system as a mode of allocation and was a determined defender of the antitrust laws who found my libertarian skepticism (one contract is as good as another, after all) infuriating. Over billiards, which neither of us could play well, he would lash out at my elegant defenses of cartels by asking why have an arrangement that leaves everyone worse off and no one better off. The germs of a seed were planted. Robert Ellickson who joined that faculty in 1970 pushed a similar line, starting with land use instead of economic regulation. All of a sudden force and fraud were not the only absolutes. There was a forward looking way to envision the world in which that question—why pick one arrangement if a second leaves at least one person better off and no one worse off—plays a central role. He became ever more insistent, and in the end converted me from a deontological sort, suspicious of consequentialist explanations, into a consequentialist who found new justifications for much of the libertarian thoughts I had developed in my Oxford days.
Four years of USC and then it was on to Chicago. I still thought myself a libertarian at the core, and indeed started to write on questions of tort law that involved two party interactions, for which the libertarian model worked very well. But at the same time, arrival at the temple of law and economics subjected me to a barrage of attacks, many from that well-known academic pugilist, Richard A. Posner, who found the efficiency of the common law in every rule he examined. It was one of my early arguments with him that led me to write A Theory of Strict Liability, in which I tried to follow and refine the work that Hart and Honoré did on causation, to explain why the Hand formula so favored by the economists did not make much sense at all, and to defend the libertarian rule that denied any obligation to rescue a stranger. In part I came to think that the Hand formula was wrong, not because it embodied the use of economics, but because it got the economics wrong. For cases of harm to strangers, a strict liability rule invited an actor to take into account the losses to other individuals as if they were his own. For consensual cases, I came to think that no party would choose this particular rule because of the difficulties of information and incentives it created. In fact I later discovered that this was correct: in the explicit contracts in England in the 1860s and beyond, for both mines and rails, a workers’ compensation–like system was reached through negotiation. Matters did not get any better when I tried to explain the intentional harm cases in economic settings without reference to economics, which prompted Posner to write a set of comments that was headed, if I remember correctly, “Intentional Harms: An Essay in Self-Destruction,” which in part I suppose it was.
As the 1970s moved on I became more confident in my ability to give consequentialist arguments to explain various legal arrangements. As the center of gravity in legal circles shifted from two party torts and simple contracts to collective action problems of zoning, bankruptcy, labor law and the like, the libertarian modes of property, tort and contract seemed to fit less well. In these transactions, a collective solution was highly vulnerable to holdout and free rider problems which the consequentialist theories did a better job of explaining than the strong libertarian theories that tended to overlook transaction costs and uncertainty in their formulation of legal rules. All this came to a head for me when I spent a year on the Stanford Campus at the Center for Advanced studies in the Behavioral Sciences. At this time it came to me that any adequate theory of liability had to take explicitly into account the issue of transaction costs, which for the most part I had regarded as something of a detail. But the law of nuisance, which deals with various noninvasive forms of interference such as smells, fumes, and discharges, offers a fine laboratory to test the importance of these transaction costs in the overall operation of the legal system. Many of these nuisances dealt with one-on-one situations where the traditional rules of liability—keep off, basically—worked very well. But nuisances can come in all sizes and descriptions. A single factory could pollute an entire neighborhood. A vast array of automobile emissions could pollute the polluters and their friends. A system of tort actions that traced each particle back to its source is so cumbrous that no one could think seriously of its adoption. But the decision of which (low-level) nuisances to ignore, and which to stop by public action, showed the immense diversity of cases that fell within a single legal category. Lo and behold, it turned out that the heavy rule of transactions costs influenced those cases in which the ordinary tort principles had to give way to a set of nuisance-specific rules that took into account the distribution of harm by source and victim. The theory seemed to provide strong correctives to, as it were, a theory of corrective justice, that with time I began to realize that so much of what a legal system tries to do can be summarized in a single proposition that led to libertarian-like results in many simple cases but sounded very different: minimize the level of transaction costs in order to maximize the level of social welfare. The seeds of consequentialism had at last borne fruit.
That single year at the center for advanced studies bore fruit in two other ways. First, quite by chance, David Barasch from the University of Washington organized a program that dealt with the then new topic of sociobiology, which today often travels under the less controversial label of evolutionary psychology. Labels apart, the purpose of this venture was to apply the standard principles of rational self-interest to explain the evolution of animal behavior, both for nonhuman and human beings. The key tools in this approach included the seminal contribution of W.D. Hamilton on inclusive fitness. Rationality, it turns out, is not measured solely by individual behavior, but quite to the contrary, depends on the ability of genes to express themselves in the long-term. Here individuals care about their offspring to the extent of their common genes. And they take care of their progeny to the extent that the gains to them, discounted by the level of genetic connection, exceed the costs of supply. The parent who can spend 4 units to give more than 8 units of benefit to a child will do so, but if the gain to the child is only 6, then that same parent will back off. Early on in the cycle the two-fold (or more) ratio of (child) gain to (parental) cost is so easily achieved that we see extensive efforts on the part of the mature for the benefit of the helpless. But sooner or later—call it weaning—the conflicts of interest start to appear. To me sociobiology was what the doctor ordered because it meant that there was a way to link human evolution to human personality, so that (extended) self-interest in the face of scarcity became a biological conclusion instead of a simple premise for economics. The complications induced by people having interdependent utility functions added richness to the mix because it gave good reasons to understand the need for various forms of altruism. The study of sociobiology thus allowed the bridge to be built between behavior and legal rule.
Take advantage of innate or natural impulses where the incentives for individual action line up with social welfare—as with child rearing. Beware of those natural impulses when the incentives were more perverse—as with aggression. Huge areas of behavior became clearer, and so too the premises that individuals in public places should not be presumed to possess the virtues that the biological theory denies that they could have.
In the years that followed all these strands of thought came together in the work that I did on the takings clause in particular and constitutional interpretation in general. The first point of overlap came from my study of nuisance law. Here it became clear that the rules of engagement that governed the relationships between neighbors did not necessarily carry over—indeed regularly diverged—from the rules that governed the public regulation of land use. All sorts of things that people could do which their neighbors could not stop them from became things that people could not do if the legislature so decreed. And the possibility of compensation to offset the loss of rights was studiously avoided. I had come to reject any discontinuity between public and private law (as with civil rights cases) and thought it would be strange indeed that people who could not achieve actions by private agreement could get legislative approval for those same results and not have to pay for the change. This all led me to start the work on my Takings book, which marked me as a man outside of the New York Times’s mainstream, in this case for life. In effect the government could do to private individuals what their neighbors could do, and not have to pay for the change. Build a tall building for the post office and you do not have to pay for the neighbor’s loss of view. But to restrict him from building on his own land requires a restrictive covenant that has to be bought in private markets. The government can force the change, but can only do so if it pays for the loss in value. The takings clause, with its just compensation requirement, violates the libertarian ideal because it permits forced exchanges when transactions cost are high. But it justifies the coercion by bringing about social improvements in which all can share when compensation in cash or kind is supplied. By the same token the state can enjoin conduct (e.g., nuisances, rightly defined) without having to pay a dime because neighbors are entitled to the same relief. This simple theory of governance could be expanded to cover all taxes, all regulations, all shift in liability schemes, as from tort to workers’ compensation. It was, I thought and still think, quite ingenious. It is also the recipe for striking down the New Deal for reasons that have little if anything to do with the anti-Roosevelt passions, which oddly enough I have never shared. The ability to combine a libertarian baseline with the social improvements from forced exchanges offered a powerful tool of analysis. Let the chips fall where they may.
And fall they did—hard. The anti-discrimination laws were the subject of my book, Forbidden Ground: The Case Against Employment Discrimination Laws (1992), which called for the abolition of all these laws in private competitive markets. Here the coordination problems that loomed so large in nuisance and takings cases did not emerge. So affirmative action survives in private organizations, not because of any special belief in the need for the deviation from some principle of a color-blind society, but as an outgrowth of our general belief in freedom of association. Public universities, I believe, should be allowed to do the same thing, assuming they should be run at all, if only because they are constrained by the competition from private institutions. I have no idea whether the combined position is liberal or conservative. I do hope that this is all correct.
With all this done, I wrote next on those cases in which freedom of contract did not work for government because of its monopoly power, and in the rough waters of Bargaining With the State (1993) tried to explain that, even when the government did produce some net good, it was important to maximize the total amount of that good by limiting its ability to redistribute the gain to its friends. Next came my book, Simple Rules for a Complex World (1995), which sought to develop the basic principles of social organization found in the earlier works in a way that steered for the most part clear of constitutional argument, making the case on more general grounds of political theory. My foray into health care, Mortal Peril: Our Inalienable Right to Health Care? (1997), picked up on the themes of voluntary contract in a world in which collective action problems do not run rampant, and argued against the theme of positive rights—the right to housing, health care, education or whatever—that have frequently been used to justify massive government intervention into health care markets. Here this constant effort to create government cross-subsidies leaves people frightened to oppose any position that undermines their special benefit, even if they have to pay through the nose to maintain other programs that work for the benefit of others. It is here that we see the great dangers of the use of even limited government. Any program of forced exchanges requires the government to take from A and give to B—thousands of times over. But in order for this to work, something has to be given back to the A’s of this world to make it all come out even. The great temptation of the political fixers is to use a program that is designed to foster across-the-board social improvements into one that contains a huge dose of wealth and income redistribution that goes beyond the proper purposes of the state, but which is so hard to stop in its tracks.
Even as I write this essay, the Medicare program thrives on implicit transfers, but does little to create any valuable public good. The middle ground is the place where we want to be, but it is very hard to maintain footing, especially in the absence of any real consensus as to what governments ought to do.
Principles for A Free Society—Reconciling Individual Liberty with the Common Good (1998), further elaborates on the theme of how a system of private property and free markets can be consistent with the common good and explores in great detail an issue that I had overlooked in earlier writings: when does it make sense to keep the commons in the long run, be it with water or common carriers and network industries? The issue has indeed sparked a lot of work on my part about intellectual property, when does it begin and leave off, so that we know what always should be, and will become part of some public domain commons.
And finally, in Skepticism and Freedom: A Modern Case for Classical Liberalism (2003), I seek to summarize earlier work and explain in detail why the fads and fancies of academic life on matters of moral relativism, conceptual doubt, preference formation, and behavioral economics do not undermine the classical liberal synthesis, with strong individual rights and a takings power with just compensation that I had worked so long to put together.
All in all, there is clearly a strong libertarian streak in what I write. The rules on force and fraud are the first improvement that any sensible system will seek to make from a state of nature. But if the logic of takings and forced exchanges is correct, then libertarian thinking is only the first leg of a more comprehensive theory that has to explain the deviations from the libertarian principle as well as conformity to it. I hope that the mix I have put forth will attract attacks from the left, on the ground that it is too hostile to state intervention, and from the right on the ground that it leaves too much to state power. Now that I have hit 60, but still continue to write, the thought that I might be a “moderate” after all has some great appeal.
But others will have to decide whether the intellectual positions that I have sought to put together stand firm or fall like a house of cards. I’ll let others calculate the odds.