Coercion vs. consent: a reason debate on how to think about liberty

Reason, March, 2004 by Richard A. Epstein, Randy Barnett, David Friedman, James P. Pinkerton

This is not to deny that consequences matter, a point on which Epstein and I agree. Indeed, I think there are very few libertarians today for whom consequences are not ultimately the reason why they believe in liberty. The issue is always how best to achieve good consequences. As Epstein notes, making no exception to a general prohibition on the use of force is not an option. Self-defense is an exception, as is forcible compensation, and anyone who studies the common law of torts, contracts, and property knows that other exceptions are built right in to the doctrines that define the liberal conception of several property and freedom of contract.

The remaining dispute is over whether we should expand the exceptions to include holdouts and free riders simply because economic theory seems to suggest that only coercion can deal with them effectively. Epstein is convinced. I am not. I would prefer to jump off that bridge if and when we ever come to it, and only after the alternatives are thoroughly explored. I see no reason, whether tactical or principled, to let economic theory trump liberal rights when experience shows these problems are so often solved by entrepreneurs without benefit of any special license to expropriate the property of others without their consent.

In the end, we must never forget that permitting self-defense, restitution, and preventive actions against standing threats gives rise to the problems of power: enforcement error and abuse. Every additional exception legitimating the use of force, such as taxation and takings, further aggravates these serious social problems. The fact that we must take three steps down a dangerous road does not, by itself, justify taking two more, as Epstein seems to imply. Especially when, unlike force that responds to previous violations of rights, the problems of knowledge and interest surrounding these additional exceptions permit enormous opportunities for rent-seeking by those who can credibly claim to be increasing welfare by pursuing the "public good."

Randy Barnett (rbarne#@bu.edu) is the Austin B. Fletcher Professor at Boston University School of Law, and the author of The Structure of Liberty: Justice and the Rule of Law (Oxford). His latest book is Restoring the Lost Constitution: The Presumption of Liberty (Princeton).

Swallowing the Rule

Epstein overestimates the power of his proposed limits on state action.

David Friedman

LIKE RICHARD EPSTEIN, I find versions of libertarianism that claim to deduce it by straightforward arguments from fundamental principles unsatisfactory. One reason is that libertarians, like other people, have no convincing arguments to show that their principles are true. Another is that concepts such as rights, property, and coercion are very much more complicated, and less susceptible to simple rules and sharp definitions, then such versions of libertarianism generally suppose.

While we cannot logically derive our values, we have them. So do other people. Fortunately, human values vary a good deal less than one might suppose from reading political philosophers. Few egalitarians would prefer a society where everyone had a real income of $1,000 to one where incomes ranged from $90,000 to $100,000. Few Rawlsians would choose to improve the lot of the world's worst-off person by one dollar at the cost of massively reducing the welfare of everyone else in the world. And few libertarians, however hard-core in theory, would choose a perfectly free society of desperate poverty over one slightly less free and very much wealthier. Almost everyone, in my experience, values most of the same things, although not with identical weights. It is easy for both libertarians and socialists to claim to support their principles whatever the consequences--when each group believes the consequences would be, on very nearly all dimensions, the most attractive society the world has ever seen.