I think Richard Epstein is a certifiable genius. If you’ve ever heard him speak, you know that his written work sounds just like his lectures, which come out in fully formed, highly articulated paragraphs, at rapid-fire rate. They’re often very hard to follow, and so are his books, which are written at a very advanced level. Following Epstein requires understanding things like Pareto optimality, Prisoner’s Dilemma games, and other law-and-economics talk. I find I have to read many passages a couple times to understand them. (That’s not to say his writing is dry; it’s often humorous and always cleverly phrased.) Nevertheless, for those able to follow, Epstein’s work is extremely enlightening. His book Skepticism And Freedom completes a sort of trilogy begun with Simple Rules for A Complex World and Principles for A Free Society. The title comes from Epstein’s belief that we ought to be highly skeptical of the idea that an outside party has better knowledge about the choices (and the benefits from them) that a person makes. The person making the deal is in the best position to know whether the deal meets his desires or not, and unless the bystander is directly injured, he shouldn’t be able to substitute his choices.
People who are faced with the choice between work and leisure, or love and money, or playing basketball and practicing the piano simply could make the needed comparisons between alternatives. Clearly, we do observe them making frequent decisions over lots of complex choices no matter how flawed their decision process turns out to be. So when the question that then arises is why, if anything, could a third party regulator do to improve the quality of these decisions. He faces all the problems of incommensurability in deciding whether the hypothetical decisionmaker should eat or sleep. In addition, he suffers from the insuperable disadvantage of not being privy to…any of the subjective information that each person brings in making his own choices. Legal intervention costs money; legal intervention opens up new avenues for abuse, including totalitarian excesses by government officials who seek to determine preferences on personal matters.
Epstein’s theory is an intriguing mixture of consequentialism and deduction from first principles. As I’ve mentioned recently, this mixture gives me problems, because I am uncomfortable with consequentialism. Epstein is willing, for instance, to accommodate anti-trust law, something which gives me an uneasy stomach. He’s right that the common law always was suspicious of contracts in restraint of trade—non-compete agreements and the like. This was, the courts said, not just to protect the right of the worker to earn a living, but also to protect society’s access to goods and services at low prices. But I’m not willing to concede that society has a right to goods and services at low prices. Since, as Epstein acknowledges, society can have no rights that are not derived from the rights of people who make up the society, such a right would mean that people had the right to the work of others—which is a form of slavery. Now, that’s certainly an extreme that Epstein doesn’t endorse—he seeks instead to argue that people have a right to certain background rules of contracting that allow the market to function more competitively. But I don’t think he can logically avoid falling into this trap. If a company manages to corner the market through fair agreements—even agreements in restraint of trade which are voluntarily entered into—then the result is a just result (since it is the consequence of just transactions) and to undo it because of the undesirability of the consequences would be an injustice to the contracting party. This bothers me, particularly because Epstein gives no very strong defense of his position regarding private monopoly power.
A related element of Epstein’s argument—indeed, I think it’s the real thesis of the book—is that he believes the state may force exchanges between parties, without their consent, so long as these exchanges leave no party worse off, and leaves at least one party better off. The principle of eminent domain—about which Epstein wrote extensively in his book Takings—embodies this idea, ideally. Epstein acknowledges that this element of his thought makes him pretty unique among libertarians, who probably would not accept it. But Epstein believes that it is a necessary element of society; there are many collective agreements which would leave everyone better off, but which, due to some transaction cost, cannot be enforced. The law can then serve to enforce these agreements. This principle allows Epstein to (in theory) escape some of the more complicated problems of political philosophy, since it allows society to evolve in a direction that accommodates liberty in a practical manner:
[A]ccepting state power to impose Paretian improvements has this critical conceptual advantage: the choice of initial baselines matters less than first meets the eye. If distribution A is Pareto superior to distribution B, then if A is in place, B cannot displace it; but if B is in place, then (if transaction costs are low enough) A can displace it. A constrained definition of liberty, consistent with the protection of property, thus dominates, no matter what form of liberty is protected by the perceived initial baseline. In this world, it becomes more important to reduce transaction costs than to insist on the one, correct definition of the state of nature. Any consistent, general definition should do in a conceptual world where hypothetical transformations can be introduced at zero cost.
This is a brilliant insight, I think. So much of political theory has depended on the definition of the state of nature—the debate between Hobbes and Locke. According to Hobbes, there is no moral law without an authority in place to declare and enforce it, so there is nothing wrong without the state. For Locke, there is a law in the state of nature, and that law is reason—thus it is just as wrong to steal something prior to the existence of the state than after the state is established. This is important because if there are no moral constraints prior to the state’s existence, then the people who create the state have no moral limits on the sort of state they may create—they can create a totalitarian monster if they wish. For Locke, however, the people are constrained in state-creation just as they are in everything else, by the moral law. Epstein’s point is that, if the state has the authority to force changes in the society that leave everyone better off, then it doesn’t matter whether you accept Hobbes or Locke’s notions, because the society will gradually tend toward the form that satisfies the needs of human nature. The deductive natural rights thinker might have trouble with this, because it seems to just beg the question—what gives this state the authority to force these exchanges? So far as I can tell, Epstein doesn’t answer this question.
One of my favorite parts of the book is his demolition of moral relativism, and in particular, the relativism of Richard Posner, in chapter 3. It contains some of Epstein’s best writing, and includes an argument against moral relativism which I’m ashamed to say I never thought of. Moral relativists frequently argue that moral ideas are just social conventions, so that a person outside of a society has no basis on which to criticize the moral views of those within a society. Something is “wrong” in, say, Spain, because the Spanish have decided it’s wrong; that thing would not be “wrong” in America, because we have a different society. The obvious counter to this is the Nazi genocide, which was legal under German laws—was it also morally acceptable? Posner, astonishingly, has come very close to saying yes:
It was right to try the Nazi leaders rather than to shoot them out of hand in a paroxysm of disgust. But it was politically right. It created a trustworthy public record of what the Nazis had done. And it exhibited “rule of law” virtues to the German people that made it less likely that Germany would again embrace totalitarianism. But it was not right because a trial could produce proof that the Nazis really were immoralists; they were, but according to our lights, not theirs.
Richard Posner, Problematics of Moral And Legal Theory, 111 Harv. L. Rev. 1637,1644-45 (1998) (emphasis added). Posner is at least to be praised for honestly staring into the abyss.
But assume for a moment that Posner is right—that right or wrong are dependent only on “local,” or cultural determinations. Then, writes Epstein, “ask how one person persuades another person in the same locality or social community of the soundness of some given moral point of view.” How would a German argue with another German that they ought not to murder the Jews?
One possibility is that all of us share the same common moral framework, in which case the argument is both easy and uninteresting: logical deduction and empirical verification of facts is all that is required. The second possibility is that these individuals share no moral premise, at which point the task of suasion would he hopeless even among ourselves, no matter how local our culture…. Posner’s entire argument presupposes some inexplicable unity within any given culture whose boundaries are left curiously undefined in either space or time. His “we” includes radical feminists, religious fundamentalists, and everyone in between. If members of this community can engage in moral discourse with right and wrong answers, then why does this moral discourse stop at some natural boundary line…? Why was the American of 1940 unable to pose to the Nazi of 1940 the identical question as his German interrogator…? To deny the possibility of argument across cultures is to deny them within cultures, or indeed between individual persons, each of whom could stoutly defend any moral proposition to the bitter end.
In other words, if two people within a culture may dispute as to the morality of a proposed policy, they ought to have some framework for doing so. Their visions obviously differ, so how do they conduct their argument? In the end, they would have to “appeal to one of those universals that seem bland until they are put to the test: ‘Thou shall not kill,’ for starters.”
This book is very short—under 300 pages, but it is full of fascinating thoughts. The passages on moral relativism alone are worth diamonds. One thing I really enjoy about Epstein’s work is how he handles the most complicated ideas as deftly as we might handle basic grammar. Even if you eventually disagree with him, his intellectual grace is a joy to see. Check out Skepticism And Freedom.
Previous entries of Libertarian Bookworm are here.