Quest for the libertarian middle ground

WASHINGTON, Feb. 12 (UPI) -- A libertarian law professor believes that economic transactions should be as free from government restrictions as is speech as interpreted by First Amendment jurisprudence.

Richard A. Epstein, the James Parker Hall Distinguished Service Professor at the University of Chicago Law School, previewed the ideas in his forthcoming book, "Skepticism and Freedom," at an American Enterprise Institute forum Tuesday night.

"Skepticism" refers to our ability to know enough about the gains and losses to individuals to legislate what the terms of exchange ought to be.

"We don't know enough about what people want to tell them what they ought to have," he said.

In 1919, in a landmark dissent, U.S. Supreme Court Justice Oliver Wendell Holmes created the vivid "marketplace of ideas" metaphor to illustrate the value of free expression. Holmes wrote that ideas should compete for acceptance in the hope that truth will ultimately prevail.

But Epstein noted that Holmes, as well as other U.S. jurists, have not extended the same principle to other spheres.

"We know enough about the regularity of human behavior to be deeply aware of the use of coercion on political dissent, even if we don't know enough to know which set of ideas turn out to be right," he said. But apart from speech, "any kind of justification the state puts forward in defense of its laws turns out to be OK.

"The great mistake of modern constitutional law with respect to individual rights ... is the assumption that a theory which is good enough to explain how it is that we work in First Amendment areas is utterly worthless and completely contrary to sensible facts when we are trying to work with other areas of individual activities associated with economic behavior or property rights."

Epstein did not present himself as a libertarian absolutist but rather as someone in search of a reasonable balance between individual autonomy and personal security. He called himself "Aristotle's main man of the 21st century."

The law professor said the "stripped-down version" of the libertarian minimum state is one that prevents force and fraud. The "bolstered" version includes taxation, social infrastructure and dealing "on delicate tip-toe with the regulation and prohibition of various kinds of monopoly," which he called "a rather slippery subject."

The question, he said, "is how we make government a little bigger than us small-time libertarians would like it to be. It is painful for me to recognize that we have to go that far, and one of the reasons why it's so painful is that you might end up going a great deal further."

Epstein rejects the view "that the state can be more or less anything that it pleases so long as it gives at least some nod to advancing the common welfare or the good of the population at large."

He considers himself a moderate because he believes "one can escape the dangers of being a hard-line libertarian without going into a position in which comprehensive government action is the order of the day."

He said his book defends the classical liberal position that holds "relatively limited kinds of government functions to be legitimate," with large numbers of other things falling outside of proper government action.

The professor listed three ways to think about the law and said he is skeptical about two of them.

The first is the "natural law" tradition, which appeals either to the rules of logic or to something analogous to Newtonian physics. But laws vary among societies and evolve within societies, he observed. One would be deeply suspicious of how legal doctrine could evolve, he said, "if immutability were the touchstone of the law." Such an approach is also politically unrealistic because, in modern times, "an appeal to self-evident truth will fall on deaf ears."

The other extreme, he said, "is the idea that for one reason or another virtually every proposition that you wish to assert about the nature of a proper legal order is necessarily infected with some kind of a fatal contradiction. ... The 'critical legal types' turn out to be the mirror image of the natural law types. They assume that if you articulate various kinds of propositions, you can show not their necessity but rather their impossibility."

Epstein uses skepticism -- and its relationship to freedom and human nature -- in his search for the middle ground. Skepticism is needed to defend a general set of principles about how the world should be organized without dictating "what everybody ought to have and when they ought to have it."

A dangerous form of skepticism says it is impossible to articulate rules, "but the sensible form of skepticism says we know enough about the basic patterns of human behavior that, on average, we can figure out a set of rules that is going to do better by us than some of the alternatives that we might choose to develop."

This approach, with its emphasis on moral consequences, gives a firmer foundation to the strong intuitions on which the natural law model are based by getting beyond discussions of self-evidence. Rather, it focuses on "real and material effects on human beings in ordinary social contexts as a function of legal rules."

Epstein said that this is in keeping with the thinking of the ancients, who did not begin with the question of political organization or individual legal rights but rather with human psychology: "What is the nature of man?"

His book seeks to incorporate the principles of evolutionary psychology, or sociobiology, with political science and the law. Knowledge of "basic instincts" can help us "figure out what the main lines of our social institutions ought to be," he said.

Sociobiology is the study of the biological basis of all social behavior -- in humans as well as animals. The guiding principle is that individuals act in ways that maximize the survival of their genes in future generations. It was developed from research done on such social insects as ants, termites and honeybees. It was observed, however, that although the worker castes in those species do not reproduce, they would fight to the death to protect the nest or hive. In 1964, W.D. Hamilton developed the concept of "inclusive fitness," which posited that individuals would also aid the survival and reproductive success of relatives -- with whom they share genes. Inclusive fitness has been applied to humans to explain, for example, altruistic behavior of aunts and uncles toward nieces and nephews.

But sociobiology remains controversial among some scholars, who argue that simpler and more powerful explanations can be advanced for both human altruism and human aggression.

For Epstein, the principle of inclusive fitness shows why individual self-interest "is in fact not quite individual" in circumstances of scarcity, "but has a rather more complicated, cooperative nature."

"The biological stuff that I studied in the '70s and '80s comes back to haunt the legal work I'm doing in the 21st century," he said.

Because all resources are finite, and human desire is not, "selection pressures are therefore going to have an enormous bias in favor of the selfish individual over the altruistic.

"However, the level of cooperation that is required to implement the genetic program, therefore, can be a base by which you can form larger and more complicated social behaviors than might otherwise have been. Once you understand this kind of a theory, it helps explain how to get out of the Hobbesian dilemma (surrendering freedom for security) without falling into the pitfalls of the absolute state."

We call products "goods," he said, not just because of their intrinsic value but also "because we know on average that are going to improve the fitness of those individuals who consume them."

For Epstein this explains why people need territory, which then becomes property, and "bodily integrity, which then becomes the principle of autonomy, why people need to cooperate to expand their possibilities, which becomes the principle of contracts."

What, then, should be done about the actions of one individual that cause negative consequences for others?

The great insight of all the social contract theorists, Epstein said, is that we all have more to gain from the mutual renunciation of force than we will suffer from being bound by it.

In a similar fashion, voluntary exchanges result in mutual gains for the parties. But people's wants and needs vary, so the private ordering of voluntary contracts is required because individuals know their own preferences better than any collective body can know them.

The libertarian prohibition against force and fraud arises because the losses for the victims are "enormous," while the gains to the perpetrators are very small. Monopolies and cartels are undesirable for the same reason.

"One has to be able to develop a comprehensive system of public institutions that can finance the protection of the rights that have been created," Epstein concluded.