-Caveat Lector- from: http://www.zolatimes.com/V3.16/pageone.html <A HREF="http://www.zolatimes.com/V3.16/pageone.html">Laissez Faire City Times - Volume 3 Issue 16 </A> ----- The Laissez Faire City Times April 19, 1999 - Volume 3, Issue 16 Editor & Chief: Emile Zola ------------------------------------------------------------------------ Liberty's Structure: an interview with Randy Barnett by Alberto Mingardi Randy E. Barnett is the Austin B. Fletcher Professor at Boston University School of Law. Before entering teaching, he served as a criminal prosecutor for the Cook County State's Attorney's Office in Chicago, Illinois where he tried many felony cases. Professor Barnett's research covers a wide variety of subjects with emphasis on the roles of consent in contract law, unenumerated rights in constitutional theory, restitution in criminal justice, and the importance of natural rights and liberty. His latest work, The Structure of Liberty: Justice and the Rule of Law, is a great opus containing solutions to many of the problems encountered in libertarian philosophy. The book presents a powerful case for a system of natural rights and private justice. It starts from a "post-Hayekian" and consequentialist (but not utilitarian) point of view, and addresses three key areas: the problems of knowledge, the problems of power, and the problems of interest. With a solid base in the libertarian tradition--from his "spiritual father" Murray Rothbard to Lysander Spooner (in whom he is very interested)--Barnett is not only one of the best young libertarian scholars, but also "one of us." You can find more information about The Structure of Liberty at Randy Barnett’s web page at http://www.bu.edu/rbarnett/. ------------------------------------------------------------------------ My first question concerns Bruno Leoni, a scholar from my own country with whom I think you are acquainted. What is your opinion of Leoni's opus, Freedom and the Law? Freedom and the Law was a powerful and influential work that, along with writings by Hayek, helped keep the flame of [classical] liberalism and liberty alive during its darkest days (as did the spirited Leoni himself). Though I read it as a law student and was inspired by it then, I did not rely upon it in writing The Structure of Liberty primarily because, for all its virtues, it is rather unsystematic in its nature, and I was attempting to provide a structure to the subject that had previously been lacking. Natural Law Ethics vs. Natural Rights: can you please explain the difference to our readers? Natural law ethics are the principles that result from the study of how we should live our lives, given the nature of human beings and the world in which we find ourselves. Natural rights are the principles that result from the study of how people can pursue happiness, peace and prosperity while living in society with others, given the nature of human beings and the world in which we live. What we need is liberty to make our own choices and natural rights provides the structure of that liberty by distinguishing those freedoms we may rightfully exercise from the freedom that represents impermissible license. In sum, natural law ethics purports to tell us how to exercise the freedom that is defined and circumscribed by natural rights. Robert Nozick’s account of the "immaculate conception" of the state was published exactly 25 years ago. Does this book stil have any interest for libertarians? Or has Nozick's hypothesis been destroyed by history? Nozick's work served as the focal point of libertarian theory among philosophers for 25 years. It has done a tremendous service to the cause of liberty. But now we can and must do better. Anarchy State and Utopia suffered from two weaknesses. The first was the absence of any theory of rights. It assumed rights existed and then considered the implications of that assumption. Though brilliant, it was largely reactive to the positions of others--primarily of Nozick's colleague John Rawls. Second, and much less importantly, it purported to provide a morally permissible route by which a monopoly law enforcement agency could arise without violating rights. This argument was refuted at the time by thoughtful libertarians (See vol. 1, issue 1 of the Journal of Libertarian Studies). It has not fared any better in the interim. I think it is time to move beyond Nozick and force statists to confront other arguments on behalf of liberty than those they have been mentioning for 25 years. In a way, I view both Leoni's and Nozick's books as crucially important transitional works that I was trying to supersede, and so I relied very little on either in presenting a more systematic explication of the Structure of Liberty. What has been the influence of Murray Rothbard on your thinking? Murray Rothbard had a great influence on me in many ways. First, as an undergraduate, his writings--especially For a New Liberty--convinced me more than any others to adopt a libertarian position based on natural rights, and a position which included a free market for law enforcement services. When I was a law student and came to know him personally, he also inspired me to continue thinking and writing about libertarianism. He recommended me for the fellowship that enabled me to write my first article on restitution to victims of crime. Though this was not his own view, from his example, I also saw that libertarian natural rights prin ciples alone were not enough to tell us exactly which rules of law any legal system should pick. For this we needed a common-law process of legal discovery to settle on conventional rules of law that are consistent with justice, though not derived deductively from natural rights. You've pointed out in your book the importance of the "knowledge problem." What are the differences between your solution and Hayek's? Also: is Hayek's theory sufficient for the foundation of a free society, or do we need a more powerful theory based on natural rights? Are these two theories antithetical? When I was first thinking about libertarian or classical liberal thought through a Rothbardian perspective, I did not pay enough attention to Hayek. Sometime during law school this changed and I came to be increasingly attracted to a Hayekian approach to many issues, most particularly the knowledge problem. I do not think my treatment of the "first-order" knowledge problem in The Structure of Liberty is any different from Hayek's, nor is my solution to it in the form of "several property" (Hayek's term) and freedom of contract. What I attempted to do in The Structure of Liberty is go BEYOND Hayek, to supplement the first-order knowledge problem which he stresses with the other knowledge problems as well as problems of interest and power that he does not devote as much attention to. When you do this, I think you arrive even more confidently at the same conclusions as he does, but perhaps elaborated and refined by additional principles of justice. The conclusions reached by this form of analysis are that a respect for certain fundamental natural rights is needed to solve these pervasive social problems (of knowledge, interest, and power) so that people may pursue happiness, peace, and prosperity while living in society with each other. French political writer Henri Lepage has characterized my approach as "Post-Hayekian" and I am quite flattered by the label. In The Structure of Liberty, you've spoken about "free emigration and secession," the "power to exit." About free emigration: what was its historical function in US history from your point of view? Was it important? These are all checks on the power of government to impose their will on dissenters. Of course, in the United States the first powerful dissenters from the national government were defenders of chattel slavery so secession was given a very bad connotation. Since then secession has not been much of a threat or a constraint in the US, though I understand the situation is quite different today in Italy. As I understand it, there the more productive regions in the North are threatening to secede from the more social welfare consumptive regions in the South. This seems to me to be a healthy impetus to reigning in the welfare state, but I would need to be more familiar with the particulars before I could reach a final judgment. Free emigration from one state within the US to another has constrained the powers of state and local governments but this eventually led to national legislation to prevent the "power of exit" from individual states from inhibiting social welfare programs. These national welfare programs have proven to be so destructive that some of them have recently been returned to the states for administration. Had the states previously been abolished, this "devolution" would not have been possible. At the margin, the ability to exit one's country does inhibit its rulers from abusing their powers, but the costs of exit (giving up one's home, family, friends, attachments, language) are so high that this constraint is not really as powerful at the national level as it is at the local level where one could move to another town within one's native region. I suppose that my interest in the power of exit stems more from my Rothbardian than from my Hayekian background, but I am not sure that Hayek would disagree with the importance of this basic principle of Liberty. What do you find so interesting in the thought of Lysander Spooner? Lysander Spooner was an American lawyer, abolitionist, entrepreneur, and legal theorist who lived between 1808-1887. His collected works run to six volumes. I initially became interested in Spooner as a college student because of his radical critique of the legitimacy of the U.S. Constitution (and government) in "No Treason: The Constitution of No Authority." I used this as a text in my jurisprudence and constitutional theory seminars for many years. Recently, I have become very interested in Spooner's earlier, less radical writings on the constitutionality of slavery. There he presents a fascinating theory of constitutional interpretation as well as a provocative interpretation of the U.S. Constitution that has influenced my thinking as I plan to write my next book on, "The Presumption of Liberty: Restoring the Constitution." Recently I have raised the money to erect a monument to Spooner on his grave. Your readers can learn more about Spooner at the website I have created: http://www.lysanderspooner.org. My article discussing Spooner's constitutional theory is on the site. You will also find links to other Spooner sites and writings both by and about him, as well as photos of his birthplace and grave. I do plan to add much more of Spooner's writings to the site this summer than are currently there, so check back again in a few months. In your opinion, is the libertarian debate between "iusnaturalism" and utilitarianism still topical? Since I began defending a more consequentialist conception of natural rights, I think the debate is less interesting than I used to [think it was]. Indeed, the classical natural rights thinkers did not distinguish between "moral" and "consequentialist" arguments. I do not agree, however, that all issues should, as a practical matter, be decided by some form of cost-benefit analysis. We need the guidance that only general abstract principles of justice based on natural rights can provide. But within the "frame" of permissible legal rules, efficiency analysis as well as principles of fairness can help us make the choice between rules that are equally compatible with the requirements of justice. What is the importance of the idea of "proportionality" in a libertarian theory of justice? Classical liberals tried to rein in the horrific punishments developed by governments (e.g. hanging those convicted of treason; then, while they were still alive, cutting out a person's entrails and burning them in front of them; then drawing and quartering them; afterwards mounting their heads on pikes) to stress that punishment must be proportionate to the offense committed. In addition, self defense efforts must be proportionate to the threat posed by an aggressor. The goal is to prevent over-punishment which carries with it an enhanced error cost as well as the potential for grave abuse. As I argue in the Structure of Liberty, I would replace our reliance on punishment with a system of enforced restitution and extended self-defense against demonstrably dangerous offenders. But, like punishment, both restitution and self-defense must also be proportionate. -30- from The Laissez Faire City Times, Vol 3, No 16, April 19, 1999 ------------------------------------------------------------------------ Published by Laissez Faire City Netcasting Group, Inc. Copyright 1998 - Trademark Registered with LFC Public Registrar All Rights Reserved Disclaimer The Laissez Faire City Times is a private newspaper. Although it is published by a corporation domiciled within the sovereign domain of Laissez Faire City, it is not an "official organ" of the city or its founding trust. Just as the New York Times is unaffiliated with the city of New York, the City Times is only one of what may be several news publications located in, or domiciled at, Laissez Faire City proper. 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