The Structure of Liberty: Justice and the Rule of Law

390 Pages·2014·1.13 MB·English

by  Randy E. Barnett

The Structure of Liberty

OUP CORRECTED PROOF – FINAL, 01/16/2014, SPi
The Structure
of Liberty
Justice and The Rule of Law
Second edition
Randy E. Barnett
1
1
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© Randy E. Barnett 2014
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First Edition published in 1998
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To my parents and grandparents for giving me love,
And to my father for giving me a love of justice and liberty.

ACKNOWLEDGEMENTS
It is difficult to acknowledge, without being either neglectful or tedious, all
those people and institutions whose influence have contributed to a book
about one’s deepest convictions. But my debts are such as to oblige me to run
these risks. Let me begin with the people.
My gratitude goes, first and foremost, to my parents, to whom this book is
dedicated: my father, Ronald, the court of law and justice, and my mother,
Florice, the court of equity and understanding. At least those were the roles
they played convincingly before I was old enough to have them as my closest
friends. My father’s overriding concern for principle, right, and liberty cer-
tainly was responsible for my goal, acquired at the age of 10, to become a
lawyer—a criminal lawyer to be specific—in order to make the world a more
just place, and has shaped my intellectual agenda ever since. Though he was
distressed when, in college, I was diverted to philosophy, his concern was
short-lived for, as he later admitted, philosophy turned out to have been good
for me.
I owe that diversion, which forever changed my life, to Henry Veatch, whose
every philosophy course I took when he taught at Northwestern, but who taught
me as much outside of the classroom as within. Henry (I still have a hard time
calling him anything other than Professor Veatch) devoted an incredible amount
of time and energy to me, a lowly undergraduate, patiently enduring my endless
questioning, not to mention my flirtations with political and philosophical
views which to him could only have seemed like the follies of youth. It was
Henry’s impassioned Aristotelian-Thomist defense of natural law in both his
classes and, especially, in his books, Rational Man and For an Ontology of Morals,
that persuaded me to adopt what was then, in the heyday of analytic philoso-
phy, considered to be an archaic position which time had passed well by. It was
also from Henry I first learned that natural law and natural rights were distinct,
for when I encountered the latter and rushed eagerly to share with him my dis-
covery, my enthusiasm was met with a fatherly disapproval I would never forget.
Imagine my surprise when, some years later, Henry presented an Aristotelian
defense of natural rights in his book, Human Rights: Fact or Fancy? I know
Henry, now in his 80s, must be disappointed that my explication of natural
law in Chapter 1 is not more Aristotelian. I can only plead that it is also not
meant to be anti-Aristotelian and that my account of natural law is a minimal-
ist one intended to sweep broadly and for a very limited purpose. My objective
was to take no position on the merits of a more teleological natural law, given
that it was unnecessary to do so to explain the conception of natural rights
which I employ here.
viii Acknowledgements
I owe that initial discovery of natural rights to a classmate of mine, and
future journalist, Jeanette DeWyze. Being unsuccessful, after repeated efforts,
in interesting me in this and some other even more heretical notions, she
introduced me to a very junior, very earnest classics professor at Northwestern
named John Cody. John, who often traveled with a copy of Mises’ Human
Action so well-marked with marginalia that the original typescript was all but
obliterated, undertook a nine-month private tutorial conducted at the student
union and other such sordid places.
After this instruction had finally begun to sink in, I embarked from the
safety of my native Chicago to the heated halls of Harvard Law School where
such ideas were treated by my professors and fellow students alike with, well,
shall we say, diffidence. As luck would have it, I soon met another first year
(1L) student, John Hagel, who shared my deviance, and we quickly became
fast friends and collaborators on a number of projects, culminating in our
anthology, Assessing the Criminal: Restitution, Retribution, and the Legal Process.
And it was John, now an influential business consultant and author, who took
me to New York and introduced me to such intriguing intellectuals as Walter
Grinder, Leonard Liggio, Joe Peden, Ronald Hamowy, Walter Block, Ralph
Raico, Bill Evers, Mario Rizzo, Gerry O’Driscoll, Don Lavoie and, above all, the
unforgetable Murray Rothbard.
I had first read Murray’s writings in college and my attraction to a polycen-
tric legal order of the sort I defend here in Chapters 12 through 14 was strongly
reinforced by his book, For New Liberty. And it was the day I first met Murray
and found myself alone with him and John in his study when I began to sus-
pect the limitations of abstract principles of justice, an issue which I discuss in
Chapter 5, and the need for law. For, as John and I peppered him with the
classroom hypotheticals with which we were being tormented as 1Ls, we dis-
covered that they were as baffling to him as to us. Murray also recommended
me to the Institute for Humane Studies (IHS) for a summer fellowship that
enabled me to write my earliest work on restitutive justice (discussed in Chap-
ters 8, 10, and 11) in the summer between my first and second years of law
school.
It was not too long after that when I met George Smith. For a time, we were
something of friendly intellectual rivals. The first indication that we would be
more than this came on the heals of a debate we had on the subject of proce-
dural justice. I had commented somewhat critically on a paper by George at a
conference held at Princeton. Sometime later, when I was already in practice
as a criminal prosecutor in Chicago, the papers were published, along with
George’s reply. I remember quickly skimming through his response and feel-
ing a bit uneasy. For he had refined his initial position in such a way as to
make my argument seem less than entirely persuasive. A bit disconcerted, I
tossed the volume aside, being too enthralled by my involvement with the
criminal justice system to focus on such matters. When I picked it up again
some years later, my initial instincts were confirmed. Without question, he
Acknowledgements ix
had bested me in that debate and taught me an important lesson about the
centrality of legality, as distinct from justice, in the structure of liberty. It was
not to be my last lesson from George.
My instruction continued when, for many years, George and I both taught
in the summer seminars organized by the Institute for Humane Studies.
Every summer, I would audit his lectures which were fascinating from the
beginning and which became increasingly so over time. Though trained in
philosophy at Arizona State, George had abandoned his formal schooling to
pursue a decade-long course of independent study, a large measure of which
was devoted to the long-forgotten classical natural rights theorists. It was his
synthesis of their arguments that caused my thinking to take the direction
reflected in this book, most importantly in Chapter 1, but also in the argu-
ment on the inalienability of certain rights which is presented in Chapter 4.
In more ways than I can know or acknowledge, this book has been influ-
enced by George’s distillation of the classical approach to natural rights as
well as his own theories of justice. I am and will forever be deeply indebted
to him.
Then there are two men who influenced me greatly solely through their
writings, as will be apparent throughout this book: F. A. Hayek and Lon
L. Fuller. I cannot claim to have known either man. While I was once at a
conference with Hayek, I confined my contact with him to taking his picture
from the safety of an adjacent table. With Fuller, I was a little younger and a
bit more daring. Long after his retirement, and shortly before his death, he
gave a lecture in a law school class I took on law and religion. I called him up
afterwards, and he invited me to his house, where we shared an afternoon tea
in his parlor. I wish I could remember what we discussed, but the image of that
bright sunny afternoon has always remained with me.
So many people have contributed importantly to this work during its long
gestation by reading various portions or commenting on oral presentations of
these ideas that I will surely overlook someone. Those who have helpfully
marked up portions of previous incarnations include Eric Blumenson, David
Friedman, Ellen Paul, Michael Zuckert, and my colleagues Ron Cass and
David Lyons. I benefited greatly from reactions I received during faculty work-
shops at the University of Toronto, the Quinnipiac College School of Law, Case
Western Reserve School of Law, Bowling Green State University, Institute
Euro ’92 in Paris, and the Boston University School of Law, as well as during
the many years of lecturing on this subject at IHS summer seminars. For the
price of a cappuccino, Russell Hardin gave me invaluable advice about seeking
a publisher.
Special thanks are due Tom Palmer, for his enormous assistance on the first
and last chapters, and to David Schmidtz and Jeremy Shearmur, who read an
entire early version and made painstaking critical comments on nearly every
page. Many serious errors were avoided due to them and this book was sub-
stantially rewritten with their comments in mind.