Coercion vs. Consent

Richard Epstein, Randy Barnett, David Friedman & James P. Pinkerton from the March 2004 issue

(Page 3 of 5)

The remaining dispute is over whether we should expand the exceptions to include holdouts and free riders simply because economic theory seems to suggest that only coercion can deal with them effectively. Epstein is convinced. I am not. I would prefer to jump off that bridge if and when we ever come to it, and only after the alternatives are thoroughly explored. I see no reason, whether tactical or principled, to let economic theory trump liberal rights when experience shows these problems are so often solved by entrepreneurs without benefit of any special license to expropriate the property of others without their consent.

In the end, we must never forget that permitting self-defense, restitution, and preventive actions against standing threats gives rise to the problems of power: enforcement error and abuse. Every additional exception legitimating the use of force, such as taxation and takings, further aggravates these serious social problems. The fact that we must take three steps down a dangerous road does not, by itself, justify taking two more, as Epstein seems to imply. Especially when, unlike force that responds to previous violations of rights, the problems of knowledge and interest surrounding these additional exceptions permit enormous opportunities for rent-seeking by those who can credibly claim to be increasing welfare by pursuing the "public good."

Randy Barnett is the Austin B. Fletcher Professor at Boston University School of Law, and the author of The Structure of Liberty: Justice and the Rule of Law (Oxford). His latest book is Restoring the Lost Constitution: The Presumption of Liberty (Princeton).

Swallowing the Rule
Epstein overestimates the power of his proposed limits on state action.
David Friedman

Like Richard Epstein, I find versions of libertarianism that claim to deduce it by straightforward arguments from fundamental principles unsatisfactory. One reason is that libertarians, like other people, have no convincing arguments to show that their principles are true. Another is that concepts such as rights, property, and coercion are very much more complicated, and less susceptible to simple rules and sharp definitions, then such versions of libertarianism generally suppose.

While we cannot logically derive our values, we have them. So do other people. Fortunately, human values vary a good deal less than one might suppose from reading political philosophers. Few egalitarians would prefer a society where everyone had a real income of $1,000 to one where incomes ranged from $90,000 to $100,000. Few Rawlsians would choose to improve the lot of the world's worst-off person by one dollar at the cost of massively reducing the welfare of everyone else in the world. And few libertarians, however hard-core in theory, would choose a perfectly free society of desperate poverty over one slightly less free and very much wealthier. Almost everyone, in my experience, values most of the same things, although not with identical weights. It is easy for both libertarians and socialists to claim to support their principles whatever the consequences -- when each group believes the consequences would be, on very nearly all dimensions, the most attractive society the world has ever seen.

If most people have at least roughly similar values, and if libertarians are correct about what sort of society libertarianism would produce, we need not justify our own values in order to argue for libertarianism. All we need do is to show that a libertarian society would be more attractive, by widely shared standards, than any alternative -- wealthier, wiser, freer, more just, better for poor as well as rich. That is, after all, what most libertarians believe.

Having adopted that strategy, I am sympathetic to Epstein's approach: Derive a legal and political system from the practical requirements for achieving the things humans want to achieve. My disagreement is with his conclusions.

To begin with, he is too pessimistic about the possibility of achieving important objectives without the state. Consider his claim that "the public enforcement of private rights and the creation of infrastructure through condemnation both need money that only compulsory exactions can supply."

The rights half of that claim assumes that private rights must be publicly enforced, despite a considerable number of societies where rights enforcement was produced privately. The infrastructure half assumes that the sort of coordination problems associated with building roads cannot be solved, imperfectly but adequately, by private mechanisms -- despite real-world examples where they have been.

Even if we accept those assumptions, the conclusion still does not follow. To justify taxation we need the additional assumption that rights enforcement cannot be done by the state at a profit, despite historical examples of societies where the right to enforce the law and collect the resulting fines was a marketable asset, and that the government cannot charge enough for the use of its roads to compensate the owners whose land was condemned.

A second general problem with Epstein's argument is that he overestimates the ability of his proposed rules to constrain state action. He writes: "It is easy to see why the state should keep its hands off the substantive terms of labor contracts in a deductive libertarian world....Systems of price and rent control similarly go by the boards, as does the full range of tariffs, anti-dumping laws, and other impediments to international trade."

In a world with income taxes, the state cannot keep its hands off the substantive terms of labor contracts because it has to define which terms do or do not count as income. And it requires only a moderate degree of economic ingenuity to create coordination arguments for state-imposed restrictions on labor contracts designed to reduce the deadweight burden from taxation or solve subtle problems of adverse selection.

Tariffs are an even clearer case. The infant industry argument for tariffs -- the idea that trade barriers are needed to help a potentially competitive industry get started -- can be, and has been, recast as a coordination argument, in which one's firms activities in a new industry are alleged to produce external benefits for other firms in the industry. And it is straightforward to show that a country in a monopoly position as either a producer or consumer can use a tariff or export tax to extract monopoly returns from its trading partners.

There are many other examples of government policies that Epstein does not like but that could be defended on his principles, including government involvement in education, in research, and in the production and regulation of information. His exceptions swallow his rule, leaving us with everything up for grabs -- and familiar public choice reasons to expect that far too much of it will be grabbed.