The Structure of Liberty: Justice and the Rule of Law

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What is liberty, as opposed to license, and why is it so important? When people pursue happiness, peace and prosperity whilst living in society, they confront pervasive problems of knowledge, interest, and power. These problems are dealt with by ensuring the liberty of the people to pursue their own ends, but addressing these problems also requires that liberty be structured by certain rights and procedures associated with the classical liberal conception of justice and the rule of law.
Drawing upon insights from philosophy, economics, political theory, and law, Randy Barnett examines the serious social problems that are addressed by liberty--and the background or "natural" rights and "rule of law" procedures that distinguish liberty from license. He then outlines the constitutional framework that is needed to protect this structure of liberty. Athough this controversial new work is intended to challenge specialists, its clear and accessible prose ensure that it will be of immense value to both scholars and students working in a range of academic disciplines.

The Structure of Liberty: Justice and the Rule of Law Review

Does a just human society require a centralized, paternalistic State? Randy Barnett says it requires only a social order of a certain kind, namely one characterized by his chosen subtitle, "justice and the rule of law."

In this brilliant work, which should be read as soon as possible by all parties to the anarchism/minarchism debate, Barnett tries to show what such a social order might look like. Here I shall briefly summarize the book's contents.

In an introductory chapter, "Liberty vs. license," he discusses just enough of the philosophy of "natural law" and "natural rights" to let his readers know he is _not_ writing a book about them and that his subsequent analysis does not stand or fall with any particular understanding of the origin of rights.

He then plunges, in Part 1, into the "Problem of Knowledge," which occupies the next five chapters. Here he deals in turn with what he calls the first-, second-, and third-order problems of knowledge: using resources, communicating justice, and specifying conventions. (Importantly, he acknowledges that "background rights" to life and property are not sufficient to determine the specific forms these rights should take in every case. What he has called the "third-order problem" -- specifying conventions that secure justice -- is thus not settled merely by an abstract account of "rights.") His argument here, of course, is that the classical-liberal conception of justice and the rule of law is what is needed in order to solve these knowledge problems.

Part 2 (chapters 7-9) deals with what Barnett identifies as the "Problems of Interest" (problems of partiality, incentive, and compliance) and Part 3 (chapters 10-14) with the "Problems of Power" (problems of enforcement error, fighting crime without punishment, and enforcement abuse). Here he argues that the liberal conception of justice and the rule of law solves these problems -- helpfully devoting chapters 13 and 14, respectively, to a more or less abstract discussion of a "polycentric" constitutional order and to a "short fable" envisioning concretely how such an order might work in practice.

Finally (Part 4, consisting of chapter 15), he devotes nearly thirty pages to consideration of possible criticisms. His trenchant closing remarks on "the limits of criticism" should be taken to heart by all parties to the debate.

I myself find his arguments cogent and compelling. Possibly some supporters of a minimal, limited State will find them less so. But be that as it may, Barnett has significantly advanced the debate with this fine volume, and no participants can claim to have dealt adequately with "anarcho-capitalism" until they have dealt also with Barnett.

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