This article was published in the Summer 1999 issue of Formulations
by the Free Nation Foundation

The Structure of Liberty
by Randy Barnett

Reviewed by Roy Halliday

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Unfortunately, we will still need lawyers
Rights are part of a planned architecture for society
Background Rights
Extended Defense
The Case Against Punishment
Does compensation have to be compulsory?
Can we fight crime without resorting to punishment or compulsory compensation?
A Taste of Barnett at His Best

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This is a scholarly, often difficult, yet bold and often brilliant, treatise on law that will repay the efforts of a patient reader. It gets better as it goes along. If you stick with it, you will learn the rationale for a new libertarian legal paradigm based on restitution.

In this ambitious essay Randy Barnett presents rights and the rule of law as hypothetical (as opposed to categorical) imperatives. The hypothesis is that a society that is peaceful, cooperative, and prosperous is desirable. His argument is couched in terms of solving the problems of knowledge, interest, and power. The reason for stressing these problems is that:

"Addressing these problems is a prerequisite to any hope we have of effectively handling the other problems of social life. A society that failed to deal effectively with the problems of knowledge, interest, and power would be in chaos. And a society in chaos cannot deal effectively with any social problem, however serious it may be." (326) He systematically builds the case for a particular set of rights, adding to and modifying the list of rights as he goes along. Considerately, he repeats the list and highlights the changes in bold letters each time his analysis requires him to alter the previous version of the list. He also includes summaries of the main points at the end of each chapter.

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Unfortunately, we will still need lawyers.

Since Barnett is a law professor, it is not surprising that many of the sources cited in his footnotes are legal scholars rather than philosophers and that he uses terms found in legal journals in place of more common words. Sometimes this adds precision. Sometimes it doesn't.

One would hope that, in a libertarian legal system, the laws would be simple and we wouldn't need-no-stinking-lawyers. But Barnett defends them. He says lawyers play a crucial role in reducing partiality in the courts because they are repeat players in the legal system.

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Rights are part of a planned architecture for society.

Barnett's objective in this book is to devise meta-rules for handling the problems of knowledge, interest, and power in such a way as to produce a society from scratch that will be as peaceful, cooperative, and prosperous as possible. The background rights that he comes up with are part of this plan. He finds the appeal that these rights have lies in our interest in solving these problems rather than in our conscience or personal integrity. He aims his argument at social architects rather than individual moral agents. Consequently, he imagines that the basis for our objection to theft is that we appreciate the first-order problem of knowledge:

"Permitting forcible transfers disrupts the complex, but vital, mechanism of information dispersal that only consensual transfers make possible. In this regard, the prohibition on the use of force reflects an effort to handle the first-order problem of knowledge, which consists of permitting persons and associations to act on the basis of their diverse local and personal knowledge while taking into account the knowledge of others about which they are pervasively ignorant." (103) Normal human beings would regard this as a far-fetched explanation. People have been outraged by theft much longer than they have known about the first-order problem of knowledge. In fact, few people have ever heard of this problem or have an appreciation of its significance. This is not what they have in mind when they yell "Stop thief!"

Barnett's arguments in support of the meta-rules for a free society leave a lot to be desired with regard to human moral psychology, but they constitute a fine piece of work in social architecture.

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Background Rights

I like the fact that Barnett clearly distinguishes between three uses of force (1) to defend rights, (2) to rectify rights violations, and (3) to punish rights violators. He explains that force used in defense generally occurs ex ante (before) or during a rights violation and that force used to obtain compensation or to punish rights violators generally occurs ex post (after) the crime.

The right to use force to defend rights may be derived immediately and trivially from the very idea of enforceable rights. If we have any enforceable rights at all, we have the right to use force or threats of force to defend them. That is what enforceable means. If we don't have any enforceable rights, then the whole idea of justice is empty. But the right to use force to rectify rights violations and the right to use force to punish rights violators are not so easy to establish.

Here is Barnett’s final formulation of justice and rights:

"Formulation 6. Justice is respect for the rights of individuals and associations. (1) The right of several property specifies the right to acquire, possess, use, and dispose of scarce physical resources—including their own bodies. Resources may be used in any way that does not physically interfere with other persons' use and enjoyment of their resources. While most property rights are freely alienable, the right to one's person is inalienable.

(2) The right of first possession specifies that property rights to unowned resources are acquired by being the first to establish control over them and to stake their claim.

(3) The right of freedom of contract specifies that a rightholder's consent is both necessary (freedom from contract) and sufficient (freedom to contract) to transfer alienable property rights—both during one's life and, by using a 'will,' upon one's death. A manifestation of assent is ordinarily necessary unless one party somehow has access to the other's subjective intent.

(4) Violating these rights by force or fraud is unjust.

(5) The right of restitution requires that one who violates the rights that define justice must compensate the victim of the rights violation for the harm caused by the injustice, and such compensation may be collected by force, if necessary.

(6) The right of self-defense permits the use of force against those who communicate a credible threat to violate the rights of another." (190)

The only change I would make would be to delete number 5. Most other libertarians would keep number 5 and add a similar one describing the right to punish criminals.

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Extended Defense

Barnett advocates a broadened definition of defense that allows us to use force, if necessary, when someone has communicated to us their intention to violate our rights. I agree with this and go a bit further. Communication of an intention to violate a right is not always required, in my opinion, in order to justify the use of defensive force. If you see that someone is about to violate your rights, whether this is their intention or accidental, you have the right to use force to prevent them from violating your rights, if there is no other way to stop them. One difference between unintentional imminent threats and intentional imminent threats is that non-violent means have a better chance of working against unintentional threats. Sometimes it is only necessary to toot your horn or shout "Watch where you're going!" or "Keep your eyes on the road!"

What matters the most is what someone is threatening to do, not why he is doing it. He may be so crazy or absent minded that he doesn't realize that he is threatening others. It is still OK to use force, if necessary, to stop him. Barnett supports this view with regard to defense against mentally incompetent people:

"Indeed, if a person is so incompetent as to be unable to control his conduct, he becomes a greater threat, not a lesser threat..." (189) Barnett says, "The principle of extended self-defense might well be used to justify life imprisonment for some violent offenders who have communicated by their past actions the intent to commit violence again." (191) But he would limit incarceration for defense to those who have been convicted of crime by a heightened standard of proof such as proof beyond a reasonable doubt, perhaps more than once. (213-214)

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The Case Against Punishment

Barnett argues against punishment. This will be hard for many readers to accept. The desire to punish offenders seems to have deep roots in human nature. It is counterintuitive to say that the guilty should not be punished, especially when they are guilty of heinous crimes. However, I agree with Barnett on this subject, and I go even further in this counterintuitive direction than he does. I notice that many of his arguments against punishment can be turned against his own system of compulsory compensation.

Barnett asks a series of questions of those who advocate punishment. When we substitute compensation for punishment in some of these questions they become difficult for those who advocate compensation to answer:

Is the amount of compensation whatever it would take to subjectively satisfy the victim, or is it limited somehow?

What is the appropriate compensation?

What form should the compensation take: monetary fines, services, payment in kind?

Suppose you murder your own child, who should receive compensation?

Here is another objection to punishment that applies equally to compulsory compensation: "Once legitimized by retributivists, the power to punish can be abused when it is knowingly applied to the innocent, to disfavored groups, and to those whose actions do not merit punishment." (320) Barnett argues against the possibility of discovering the optimal schedule of punishments. Unlike some theorists who think all we have to do is try different schedules of punishment and thereby determine empirically which one deters the most crime at the lowest cost, Barnett is aware that punishment harms those who receive it, and we have no way to measure this harm to include it in our utilitarian calculations. Even if we disregard the costs of punishment to the guilty recipients, we still have to deal with the fact that some innocent people will be punished. How do we fit their suffering into the equation?

We run into the same difficulty when we try to calculate the correct compensation. Furthermore, if we look at this from the point of view of a person with a conscience instead of an economist or social architect, it can seem not only inefficient, but immoral to enslave someone or to otherwise force him to pay compensation for a crime he might not have committed or to risk forcing him to pay too much compensation for a crime that he did commit.

Barnett admits that restitution involves calculating the subjective value that the victim of crime places on compensation for his loss, but he says this is not so bad because it only introduces one unknown variable into the calculation. (232)

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Barnett advocates pure restitution limited to fully compensating the victims of rights violations (based on the principle of strict proportionality between the rights violation and the compensation), as opposed to punitive restitution, which requires the offender to overcompensate the victim, and pure punishment, which imposes harm on the rights violator without a requirement that he compensate the victim. (204) These are useful distinctions.

In Barnett's system of law, slavery would be legitimate:

"Because victims would have an enforceable right to restitution, unlike today, agencies acting on the victim's behalf would be justified in using force to incarcerate criminals who could not be entrusted to make restitution on their own. ... Their wages would be used to pay for their living costs and to make reparations to their victims. And they would be released only when full restitution had been made or when it was adjudged that reparations could more quickly be made by unconfined employment." (177) This led me to think that prostitution might be the most expeditious method for some criminals to earn the money to make restitution. And that some criminals might "volunteer" to be guinea pigs in medical experiments to earn the money to pay restitution. Some could get released faster by "donating" organs for transplanting. I believe these options would be available in Barnett's system, although he doesn't mention them.

Barnett thinks that the threat of being confined and enslaved until you pay restitution would be normal rather than unusual:

"... were we to fully implement a right of restitution, a majority of offenders would face ... confinement in an employment project" (221) It seems odd to me that a legal system designed by a libertarian would end up including involuntary slavery as a means to collect debts, especially since Barnett makes strong arguments against voluntary slavery earlier in the book (78-82). If a person cannot voluntarily make a binding contract to be a slave, how can he involuntarily become obligated to perform services for another person? Unless the parties entered into a prior contract, insurance policy, or wager that covers the situation, it seems to me that no property titles are transferred by an accident or a crime.

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Does compensation have to be compulsory?

Barnett's main argument for restitution assumes a false dichotomy:

"Surely a rule—'no restitution for injustice'—resulting in the certainty of injustice to every innocent victim is inferior to a rule creating only a chance of an injustice [to] an innocent accused." (203)

"... the only alternative to imposing this risk [of extracting compensation from innocent people because of error], is to guarantee that every innocent victim of crime will suffer an injustice." (228)

This overlooks voluntary compensation and self-defense. If the perpetrator admits his responsibility and voluntarily makes compensation, the victim gets compensated without risking the violation of anyone's rights. Or if the victim exercises his right to self-defense by taking back what is his, a stolen car for example, there is no error and there is restitution in the form of repossession. Also, in some cases the victim will have an insurance policy that will require his insurance company to compensate him for his loss. So it is not true that nobody will receive restitution unless we make restitution an enforceable right.

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Can we fight crime without resorting to punishment or compulsory compensation?

Barnett gives three good reasons why private law enforcement would be better. None of these reasons rely on punishment—and none of them rely on restitution. They all rely on defense. He strengthens my case against compulsory compensation while making his own case against punishment:

"First, in contrast to the public response, which must await the commission of a crime before taking action, private owners who will directly suffer from a crime can directly benefit from truly preventative measures." (223)

"Second,...ownership rights and free contracts both enable and compel private law enforcement agencies to allocate their resources more efficiently than public police departments do." (224)

"Third,...Suspicious persons can be excluded from some 'public' places and not others, resulting in a far more graduated response to the threat of crime than imprisonment." (224)

Here is another advantage that self-defense has over punishment: "... unlike a punishment that is postponed into the distant future, because normal self-defense is immediate, it is more likely to be taken into account by an offender with a high time preference." (233) This statement continues to be true when you substitute the word compensation for the word punishment.

Barnett practically admits that self-defense is a better deterrent to crime than punishment and restitution when he says:

"Because of the variables of certainty and proximity as well as the high time preference of most criminals, the most powerful disincentives to rights violations are those that are brought to bear before the offense (ex ante) or during the offense." (234)

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A Taste of Barnett at His Best

Despite my criticisms, I think this book offers the best proposal for a libertarian legal system that I have seen, and it contains many valuable insights. Here's a good engineering analogy:

"Altering the precepts of justice to pursue other social ends—even very important ends—is like taking from the foundation of a building to add more floors to the top." (326) Libertarians and classical liberals will like this one: "Given the risks that, in a conflict among competing moralities, we will be subjected to someone else's morality, the liberal conception of justice becomes nearly everyone's second-best outcome." (308)

Here's another good one:

"... particular allegations of market failures often reflect 'imagination failures' on the part of analysts rather than a genuine incentive problem." (163)

To read more gems like these, plus a fascinating chapter on how a private legal system could work, you will have to buy the book.D

The Structure of Liberty is published by: Oxford University Press, Great Clarendon Street, Oxford OX2 6DP .

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