Coercion vs. Consent

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

(Page 5 of 5)

A Moderate Responds Richard A. Epstein

Of the two basic points I made in my initial remarks, one has escaped serious criticism: that the traditional natural law justifications for freedom are not sufficient to sustain the case for individual liberty or for limited government. We are, as it were, all consequentialists now. The particular debates, therefore, are more focused. Randy Barnett and David Friedman claim that any system of forced exchanges is likely to produce more mischief than it eliminates. James Pinkerton argues that any libertarian theory that obsesses on economics runs the risk of losing the large struggles over peace and freedom. Both criticisms deserve responses.

Barnett thinks state coercion is not justified as a means to overcome major coordination problems because the risk of abuse is greater than the potential gains from the method. But his examples do not support that conclusion. Of course, the citizens of Poletown didn't want to not have their community ravaged for a pittance, nor did Donald Trump's neighbors want their homes converted to his parking lot. But it is wrong to look at this one feature of the eminent domain equation in isolation. Barnett's objections to eminent domain depend solely on the unknowable subjective value each person attaches to his or her possessions. But if that point is decisive, then eminent domain is also illegitimate when used to condemn land for national fortifications or public parks, when the public-use criterion cannot be contested at all.

Thus there are several real difficulties with Barnett's examples. First, the private use in both cases expands eminent domain power where it is least needed. Second, the puny compensation offered systematically ignored the subjective value of the private landowners and the dislocations the taking brought into their lives. Narrow the permissible set of purposes for takings and boost the compensation, and this takings problem will shrink, without using the meat cleaver of incommensurate subjective values to savage eminent domain.

Next Barnett claims we don't need eminent domain because private ingenuity can overcome holdout problems. But only sometimes. Private developers can use quiet tactics to assemble large parcels, but only because the law turns a blind eye to the low-level frauds that are used to mislead sellers about the buyer's intentions. But governments acting through public debates and appropriations can't use the same tactics to assemble land for highways. The history of oil and gas production, with the need to assemble and organize complex network industries, shows how holdout problems can stop development in its tracks. Indeed, the entire structure of property law rests on an implicit set of forced exchanges, which give first possessors, inventors, and writers priority over the rest of the world when astronomical transaction costs block voluntary negotiations. Too often private ingenuity blocks social coordination. It is much more sensible to stick with the more modest proposition that as transaction costs go down, the need for state intervention is reduced.

David Friedman's remarks are vulnerable to both these and other objections. The societies to which he refers but does not name are small communities, such as medieval Iceland, where tiny numbers and kinship relationships eased the path to social organization. Modern societies have bowed to the inevitability of some taxation, even if they have not done enough to constrain its use.

Again, it is not enough for Friedman to list the instances where state power fails. My own view gives no scope for tariffs because local protection is their raison d'être, notwithstanding all the palaver about infant industries. By contrast, the state sponsorship of scientific research has created public goods; before I ruled the National Science Foundation out of bounds, I would examine the evidence that advances in health have more than repaid their cost. Improve the system, yes; abolish it, no.

Friedman's pipe dream is that the alternative to limited government is no government at all. Not so. A large society with no central authority offers an open invitation to some sleazy individual to consolidate power in his own name. Constitutional government uses deliberation to expand the base of public support. Friedman's void at the center promotes totalitarian rule, not individual liberty.

Pinkerton charges me with an excessive preoccupation with economics. In part, I plead guilty to the charge that a short essay did not cover the waterfront and offer this belated response. First, on matters of value, nothing says that only markets matter. Indeed, as Barnett's comment and my reply to him indicate, one powerful reason for strong property rights is to allow people to pursue their subjective understanding of the good while respecting the like liberties of others. Nothing in my approach privileges certain kinds of preferences over others.

Let me turn next to Pinkerton's lists of specific issues. Pollution, how it should be attacked and when (at low levels) it should be allowed, lies at the heart of any law and economics program. The drug question also is amenable to that approach. Does drug use impose a peril on nonusers that requires some intervention before the fact? If so, what? Here's one three part program that might work: 1) abolish drug offenses, 2) remove all state subsidies for rehabilitation, and 3) refuse to reduce criminal responsibility by reason of voluntary drug use. As to terror, we all face the sticky tradeoff between liberty and security, where the only sensible program (even in Barnett's universe) asks whether additional precautions are more intrusive than beneficial. This is the heart of law and economics. Uncertainty makes utilitarians of us all.

Bush and Iraq are topics on which lawyers don't have much to say. I can predict what set of rules will help generate responsible political leaders, but I cannot make hard policy choices as a matter of general political theory. Just when should one nation intervene in the affairs of another, be it for humanitarian reasons or by way of anticipatory self-defense? Again, it is a matter of hard tradeoffs. But this is hardly an indictment of my approach. It only shows the great need for statecraft.

Nor does a focus on legal institutions trivialize issues such as character formation, family, or personal life. Here Pinkerton's criticism of me echoes that which John Stuart Mill made of Jeremy Bentham. Bentham was weak on personal virtues. There's a reason. Lawyers specialize in the question of how and when to use force. They deal with individuals as strangers, trading partners, family members, and litigants. Professionally, they don't have any inside track on matters of character, duty, and virtue, however vital.

Any libertarian who thinks you can promote virtue solely by abstaining from force and fraud is smoking some banned substance. Character helps people choose the proper course of conduct among those that are legal. Legal and political theory do themselves a disservice when they poach on questions of personal behavior. They are at their best when they deal with matters of constitutional structure and political power. It's nice, just this once, to occupy the odd position of being a moderate.