The Structure of Liberty: Justice and the Rule of Law [Paperback]

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.

Randy Barnett makes a compelling and highly readable case for a "polycentric legal order" in his book The Structure of Liberty. The novel starting point of this work is the application of market strategies to a legal system. In this regard, The Structure of Liberty is the most interesting and certainly one of the most clearly written and cogently argued, works on legal philosophy in a very long time. Taking his cue from modern rights theorists, public choice theory, and an understanding of the decentralized nature of knowledge in society, Barnett offers an alternative way to guarantee justice in a free society. At the outset it is worth mentioning, however, that Barnett is not engaged in the radical utopian theorizing which is all too common in the libertarian literature. Barnett has a background that definitely has the effect of immunizing him against such exercises, acting as an assistant district attorney in Chicago and acting as a defense attorney for several big name clients in federal appeals courts. Barnett is familiar with how the legal system works at its basic levels, and this is possibly what informs him in the direction he takes.
The first point that Barnett makes in the introduction that colors the entire work is that every right is also a restriction or, stated differently, every right implies the warrant to do violence to those that violate that right. Because of this, a proper order of rights is necessary to define a system that separates legitimate claims of rights from illegitimate ones, so that the only violence that is done is just and the only rights that are protected are legitimate ones. Any system that presumes to do this, however, must deal with three fundamental problems: knowledge, interest, and power. His book is divided to deal with each of these issues individually and to see what a liberal justice system that could deal with these problems would look like. The main critique of our current legal system is that it does not adequately deal with these issues and therefore fails to uphold a "liberal conception of justice" under the rule of law.
The central selling point of this book, however, is that although it deals with issues of fundamental importance and of philosophical as well as practical interest, it is written in such a manner so that an interested layman with little or no background in political philosophy or law could understand it. Further, it is not only accessible but also captivating and highly entertaining. Clear writing is, no doubt, the product of clear thinking, but even in well thought out works there is usually something wanting in organization and style. I can honestly say, however, that The Structure of Liberty is one of the most clearly structured (no pun intended) and stylistically inviting books ever written on the topic of legal philosophy. If you have any interest in legal theory, political philosophy, or are just drawn to interesting and new ideas you should buy this book. You will be haunted by the ideas within, even if you disagree with them, again and again.

This book is definitely of the same status as Hayek's _Law, Legislation, and Liberty_, Leoni's _Freedom and the Law_, or Benson's _Enterprise of Law_. And although his debt to Hayek, Leoni,and Benson is obvious, he definitely has a very original approach and some quite new ideas. His background in law (both as a public prosecutor and as a law school professor) gives him a lot of insights that the rest of us ordinarily wouldn't think of. This book would be an indispensable guide to designing a legal framework for a free nation.