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.
