27 March 2013

Randy Barnett's Libertarian Musings

Randy Barnett, law professor at Georgetown, is one of the leading (if not the leading) proponent of a libertarian political philosophy in the American legal academy. Barnett was the driving force behind the Commerce Clause-based challenge to the constitutionality of President Obama's signature Affordable Care Act. He's also a scholar of contract law (whom I utilize with appreciation in my Consideration in the Common Law of Contracts (download here)). Barnett also maintains the Lysander Spooner website, which is a great resource for those opposed to the USPS monopoly on delivery of first-class mail.

In any event, Barnett has recently posted a short, readable article titled Afterword: The Libertarian Middle Way (abstract here). Barnett argues that libertarianism is a "middle way" when contrasted left-wing proponents of "social justice" and right-wing "legal moralists." Well, I suppose so, when you put it that way.

Barnett argues that libertarianism's minimalism should make it seem far less radical than it appears. Libertarianism is, if anything, about liberty. But what's so great about liberty that it's the be-all-end-all of political philosophy? Barnett rushes to assert that libertarians believe in human nature and the virtues, at least he does. Thus, at the outset Barnett distinguishes between "bad" libertarians who "promote liberty as an end in itself" and "good ones" who see liberty as "a means to other ends." Barnett's problem, however, is that he has no distinctively libertarian warrant for making this distinction. Why not simply go all the way and endorse anarcho-capitalism?

Barnett also fails to take seriously the social nature of human beings. For him, "liberty enables the individual who is living in society with others to pursue happiness, or the good life. ... [Thus], living a good life is a do-it-yourself affair." (Emphasis mine.) Ah, no. That's simply wrong. (See my post Breastfeeding and Payday Loans for some relevant insights.) Of course, Barnett is entitled to be wrong. Indeed, maybe he's right and I'm in error. My point is simply that libertarianism is not as minimalistic as Barnett suggests. It has a deep (albeit thin) anthropology.

Barnett also states that "all libertarians ... believe that force is justified to prohibit unjust or wrongful behavior; but legal moralists would extend the use of force to reach some or all immoral or unethical conduct as well." (Emphasis mine.) Seriously? Isn't injustice immoral? Isn't wrongful behavior also unethical? And, if so (and I think Barnett would agree), how does he know the terms cannot be transposed? In other words, by what account can he be certain that immorality doesn't define injustice? I agree that it does not but Barnett provides no theory of ethics (or justice) to justify what must be his position.

Finally, Barnett repeats the canard that classical liberalism arose because of "the devastating
consequences of religious wars during which comprehensive religious views fought violently against each other." For accessible rebuttals of classical liberalism's self-understanding see works by Philip Benedict, Harold Berman, Philip Gorski, and John Witte, Jr. cited and discussed in my Puritan Revolution and the Law of Contracts (download here). I happen to think that classical liberalism (see Looking for Bedrock here) produces a tolerably good political state of affairs but make no mistake: classical liberalism has its own agenda. It's not merely a reaction to "bad" religion.

I don't intend by these remarks to suggest that there is no basis for libertarianism. It's only that simply positing a small set of "natural" rights cannot serve as the platform for a political philosophy. Or at least it isn't likely to persuade folks not already attracted to its conclusions. A more robust anthropology combined with a normative (theistic covenantal?) ethical foundation can well lead to something similar to libertarianism.  It's here that my Burkean, common-law sympathies come to the surface. Ideology, whether libertarian or two-kingdoms, is almost guaranteed to lead to antinomies and dead ends. A longer view of the Western historical trajectory, especially its Christian and natural law (relevant article here) tradition, provides a surer footing for a sturdy political philosophy (Looking for Bedrock above).

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