Vol. 13 No. 10 (October 2003)

SKEPTICISM AND FREEDOM: A MODERN CASE FOR CLASSICAL LIBERALISM, by Richard A. Epstein. Chicago: University of Chicago Press, 2003. 319 pp. Cloth $39.00. ISBN 0-226-213304-8.

Reviewed by Ronald J. Terchek, Professor Emeritus, University of Maryland, College Park.

Is there a case to be made for classical liberalism in a world that has changed significantly in many ways from the world of Locke, Smith, or Hume? Do the changes that separate their times from ours leave their basic arguments in tact, ready for us to employ in our complex, technologically sophisticated society, marked by a profusion of mega-institutions? For Richard Epstein, the answer to each question is a resounding yes. To fortify his argument, the author not only takes us through some of the writings of classical liberals along with some of its contemporary expressions, such as those advanced by Friedrich Hayek, but he also makes claims for classical liberalism by examining natural law. Here he argues that the basic tenants of natural law can be universalized through time and place, including our own. Epstein also seeks to fortify his case by advancing consequentialist and functionalist arguments as well as by critiquing various approaches in formal and game theory that argue against the rational model of conduct that the author finds encased in classical liberalism.

SKEPTICISM AND FREEDOM is Epstein’s third book in a series exploring the intersection of political theory and law. Although he parts company from pure libertarians in finding an important and legitimate role for government, he means to show that limited, constitutional government, one not tethered to majority opinion or welfare state commitments, is the way to proceed as constitutional government protects choice and private property and promotes elementary security. To accomplish these ends, Epstein offers a “modern defense” of classical liberalism by mining a variety of literatures from sociobiology, evolutionary theory, game theory, Pareto preferences, and behavioral economics to name a few. In doing so, he responds to a variety of critics of classical liberalism, ranging from Amartya Sen, Jon Elster, Cass Sunstein, Oliver Wendell Holmes, and Joseph Raz.

At the very beginning of this work, the author sets out his understanding of classical liberalism which relies on

a small set of powerful principles to guide ordinary social interaction. The relevant rules respect the autonomy of the individual. They account for the emergence of a strong system of private property by allowing land and movables to be reduced to private ownership by occupation, and animals by a rule of capture. They provide voluntary exchange as the one means for people to sell their labor or possessions to others who might value it more highly. Finally, to ensure the supremacy of the voluntary transfer of ownership of labor and property, the legal rules contain a strong prohibition against the use of force or fraud as means for altering the balance of entitlements and obligations in interpersonal relations (p.2).

The rule of first possession is said to be “an inexpensive way to remove things from the state of nature to private ownership, without extended political deliberations” (p.2). This leads, we are told, to a “win-win transaction.” Something like this happens in Locke’s account of labor and ownership in the early state of nature where rational persons, guided by the law of nature, are said to respect the claims of the first possessor, whose claims have an expectation of being respected by everyone else. Epstein recognizes that such reasoning cannot necessarily convince everyone today, and he offers a functional or consequentialist case to make the work of earlier classical liberals persuasive. One reason the law of first possession no longer works, but one not acknowledged by the author, stems from the invention of money. Locke gives us two states of nature—an early and a late one, with the former laying the foundation for ownership based on individual labor or first possession in a pre-monetary economy where there is enough for everyone. In the later state of nature, money becomes the medium of exchange and with it come scarcity, greed and envy, conflict and contention, and unequal holdings, in addition to unequal rewards for work. Locke also thinks that invention of money changes the accessibility of reason, because the simple causal relations that he thinks occur in the early state of nature are undermined in a highly complex world where cause and effect are not always apparent and when the present – exclusive time dimension of the early state of nature – must now make way for the future as well.

Epstein is not content to bolster his claims for classical liberalism by concentrating on canonical texts and argues that its “basic institutions of property, contract, and tort” (p.5) have origins going back to early history, particularly to Roman times. An apparently seamless chain of outlooks, practices, and protections plays a central role in this argument. The author tells us that we must “identify those empirical regularities across time, space, and culture to which any viable legal system will have to respond” (p.19). Epstein means to show that property, contract, and tort appear and reappear in countless places across history, patterns that reveal themselves to those who would assess different eras and civilizations. They are said to have grasped something both elementary and important that critics of classical liberalism cannot see and, as blind mice, would corrupt, minimize or even dismantle. However, the author does not does not follow through with historical cases or take into account the highly varied meanings of contract, much less acknowledge that for many times, places, and cultures, as Henry Maine pointed out over a century ago, the issue is not contract but status. Nor does he notice that many places on the globe, such as India and much of Africa until only recently, had long held highly complicated ideas about property that were communal or rested on communal, familial, and individual dimensions and had no substantive correspondence with our conception of private property.

A major part of Epstein’s argument is that markets are rational. Even accepting this proposition, it is highly questionable whether the current American economy, which is after all the focus of Epstein’s concern, is a market economy or whether it is something closer to an economy with some market features and a host of oligopolistic ones. To the extent that the latter prevails, arguments for the night-watchman state that protects lives, basic liberties, and private property will need a much different justification than the one the author delivers. One reason Epstein makes markets characterize the contemporary economy is that he fails to make a distinction that is crucial to Adam Smith, namely that markets require private property but not all forms of private property lead to markets.

One of the central purposes of this book is to protect classical liberalism against not only intellectual and ideological assaults but also democratic demands. Accordingly, the author writes that one “task of this book is to place limits on the scope of public deliberation (p.8). Democracy, on this account, ought not to wander into terrains where the facts are established and debate at best has no place and at worst, disturbs matters. Epstein explains that we have “powerful empirical regularities of human conduct, which explains why the same basic set of principles have received such widespread attention from so many different writers and in so many different social settings” (pp.8-9). In this way, the author departs from such modern writers as Isaiah Berlin, Stuart Hampshire, and Hannah Arendt who argue that democracy is about opinion and not truth, and it depends on debate and dispute rather than a heavy consensus denying that there are many citizens who wish to promote what they take to be worthy ideals. It is not surprising for any author who writes about liberty to assume that his position is true, and Epstein is no exception. But, to foreclose democratic debate about a wide array of policies and proposals in contemporary society is indeed surprising. Without democratic deliberation about such issues, many of those protected by such cloture will assume that they possess the truth and need not recognize that politics is often about a conflict of good causes.

Epstein’s writings about property, contract, and limited government invite the reader not only to consider what he has explicitly written, but also to wonder about what has been omitted. Epstein’s Hound of the Baskervilles – the dog who does not bark – is power, and its many manifestations are missing, with the exception of state power. However, there is a rich political-theoretical position, from Aristotle through Machiavelli through the present, that sees power at the heart of politics, that power takes many forms, that power is lodged in the state, society, and the economy, and that different expressions of power can be enabling or disabling. Such an approach recognizes there are dangers in a theory which only sees the state as the holder of power or considers only the state as dangerous. Such an approach invites us to assume everything we find in civil society to be benign. This is something that should be crucially important to someone who professes to want to protect liberty and autonomy, matters that the author signals as his driving concerns early in his book. Richard Epstein has written a provocative book that promotes classical liberalism and that will delight and fortify its adherents, while troubling and disappointing its detractors.

REFERENCES:

Arendt, Hannah. 1958. THE HUMAN CONDITION. Chicago: University of Chicago Press.

Berlin, Isaiah. 1969. FOUR ESSAYS ON LIBERTY. Oxford: Oxford University Press.

Elster, Jon. 1983. SOUR GRAPES: STUDIES IN THE SUBVERSION OF RATIONALITY. Cambridge: Cambridge University Press.

Epstein, Richard A. 1995. SIMPLE RULES FOR A COMPLEX WORLD. Cambridge: Harvard
University Press.

Epstein, Richard A. 1998. PRINCPLES FOR A FREE SOCIETY: RECONCILING INDIVIDUAL LIBERTY WITH THE COMMON GOOD. Chicago: University of Chicago Press.

Hampshire, Stuart. 2000. JUSTICE IS CONFLICT. Princeton: Princeton University Press.

Holmes, Oliver Wendell. 1881. THE COMMON LAW. Boston: Little, Brown.

Raz, Joseph. 1986. THE MORALITY OF FREEDOM. Oxford: Oxford University Press.

Sen, Amartya. 1982. “The Impossibility of a Paretian Liberal,” in CHOICE, WELFARE AND MEASUREMENT. Oxford: Oxford University Press.

Sunstein, Cass. 1999. ONE CASE AT A TIME. Cambridge: Harvard University Press.

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Copyright 2003 by the author, Ronald J. Terchek.