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The Structure of Liberty: Justice and the Rule of Law

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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.

Those of you who might be leery about picking this book up because you're not a legal professional or law student, don't be afraid. Barnett's writing is clear and lucid, and his explanations can be grasped by those without formal legal and philosophical studies, such as myself.

Barnett begins by outlining the 3 obstacles that any legal system must overcome, the problems of knowledge, interest, and power. Taking each one of these in it's turn, Barnett clearly outlines the rights and legal structure that would best acomplish those ends.

The most radical part of the book is the section on power, which is where some exceedingly strong arguments for a polycentric legal order, as opposed to the monopolistic legal order of the State institution, are made. After doing so, Barnett turns to debunking some of the criticisms of his system.

Anyone interested in law should definitely read this book, even if not a law student. Also, people from other related fields, such as economics and politics, are strongly urged to give this brilliant book a chance.

Randy Barnett, a Chaired Professor at BU Law School, has written the most important book of libertarian legal philosophy in the last decade or two. Barnett is very sophisticated and original in his analysis. In an era when attacks on liberalism are common (what era isn't?), Barnett shows how democracies devoted to liberty and structured by the rule of law can usually solve problems of government and justice that are difficult to solve under more paternalistic legal regimes. The analysis is, on balance, more coherent, consistent, and successful than his predecessors in this genre (though no one can match F. Hayek for originality). The Structure of Liberty is a very well written book of political and legal philosophy, drawing on Barnett's considerable analytical and rhetorical skills. It is an instant classic.

The Structure of Liberty is one of the finest libertarian books on the scene today. More than just another justification of libertarianism, Barnett explores libertarianism's practical implications, showing how the "liberal conception of justice and the rule of law" is effective in dealing with a series of problems he presents as facing any legal system. And though you wouldn't know it by reading some of the reviews on this page, Barnett defends a version of libertarian anarchism, devoting an entire to chapter to listing the problems of the monopolistic state ("the single power principle"). This book's other highlights include his superlartive defense of restitution and the short story about the ability of a "polycentric constitutional order" to deal with the "rouge agency" problem that defenders of libertarian anarchism inevitably encounter. A must-read for all those interested in libertarianism.

Randy Barnett does not address authors like Emma Goldman, Pierre-Joseph Proudhon and George Seldes, and ones like Ferdinand Lundberg only sparingly because of academic cowardice. For the same reason he will not discuss classic libertarian minds, such as Machiavelli, Locke, Mill or Adam Smith with depth or evenhandedness. By high standard, this author is bookshelf clutter! This is Ayn Rand posing as some kind of high, scholarly academic legal work. Please get out of the way of real radicals, you are STRICTLY rhinestone-radical school!

Mr. Barnett's explanation of the basis of property rights is as clear as I've seen. His arguments in favor of a justice system that compensates victims instead of punishing violators are convincing. All in all, a very good book.

Randy Barnett(Austin B. Fletcher Professor of Law, Boston U) has written a good, cogent and sometimes clear defense of decentralized libertarianism i.e. anarchic capitalism. It is divided into three major sections. The first deals with problems of knowledge (broken into first, second and third order problems). Such puzzles as individualized local knowledge, how best to convey it and how law can best be communicated are given thorough (but accessable) treatment.

The second section deals with the problem of interest. This is the shortest and least original part of the book. Starting with the 'natural law' that humans tend to act in their own self interest, we come to the dilemma of how to make sure that while doing this, everyone follows law, has appropriate incentive not to cheat, and utilizes 'freedom of contract' to the best of her ability.

The third and most interesting section is on the problem of 'power.' Here we start exploring the virtues of capitalism and the many problems linked with 'public property.' Barnett discusses how things like streets and police forces could be improved by bringing them into the private market where they are accountable to their clientele. The observant reader will doubtless be scratching her head here. What about the 'free-rider' problem, making sure enough people using a service are paying, and that certain things are available to most (if not all?) This book covers these things with quality explanation.

I've subtracted two stars because Barnett has a tendency to repeat himself every chance he gets. Not only do we get a condensced summary at the end of every chapter, he spends a good bit of every chapter reformulating what we learned before it. So while I liked the book (I'm still a minarchist, not anarchist) I found it a bit longer and dryer than it could've been, especially when compared to books like "Law, Legislation and Liberty" and "Anarchy, State and Utopia."

This book is one of the most important works of libertarian theory since Nozick. And while it shares with that volume a weakness for foundational philosophic issues (Barnett tells us that libertarian rights are good because they promote "peace, prosperity, and happiness," with litte in the way of clarification or elaboration), it is nevertheless an important synthesis of work in economics, legal and political theory, and philosophy. The weaving of Hayekian insights into a coherent libertarianism is incomplete, but far better than anything else produced thus far. And the case for anarcho-capitalism (a polycentric legal order) is intriguing, if not entirely novel. A worthwhile book.