Truth, justice, and the libertarian way(s)

Boston University Law Review

Volumn 91, Issue 4, 2011, Pages 1347-1358

  Lawson, Gary ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 80051878726     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (32)

1. See Gary Lawson, The Ethics of Insider Trading, 11 Harv. J. L. & PUB. POL'Y 727, 727 (1988).
2. See Gary Lawson, Efficiency and Individualism, 42 DUKE L. J. 53, 57 n. 16 (1992).
3. MICHAEL J. SANDEL, JUSTICE: WHAT'S THE RIGHT THING TO DO? (2009).
4. See AYN RAND, ATLAS SHRUGGED 898-906 (1957). To be sure, there are reasons grounded both in biology and in the economics of information why one might adopt a presumption in favor of people to whom you are "close" (either genetically, relationally, or geographically), but it is only a presumption.
5. With respect to the choice among Shakespeare, The Simpsons, and professional wrestling, see SANDEL, supra note 7, at 54-55: I have never watched The Simpsons, but I will match the classic soliloquies of Nature Boy Ric Flair and (the sadly late) Macho Man Randy Savage against Hamlet any day.
6. Richard A. Posner, Utilitarianism, Economics, and Legal Theory, 8 J. LEGAL STUD. 103, 111 (1979).
7. JOHN RAWLS, A THEORY OF JUSTICE 4-5 (1971). I have elsewhere said some very unkind things about this methodology.
8. See Gary Lawson, Prolegomenon to Any Future Administrative Law Course: Separation of Powers and the Transcendental Deduction, 49 ST. LOUIS U. L. J. 885, 890 (2005); see also Lawson, supra note 1, at 779 n. 214. I do not retract any of them.
9. See Randy E. Barnett, The Moral Foundations of Modern Libertarianism, in VARIETIES OF CONSERVATISM IN AMERICA 51, 55 (Peter Berkowitz ed., 2004);
10. David Boaz, Objectivists and Libertarians, INDIVIDUAL LIBERTY, FREE MARKETS, AND PEACE, CATO INSTITUTE (Mar. 25, 2011, 5:26 PM), http://www.cato.org/pub-display.php?pub-id=8120.
11. There is not, however, any special libertarian category of "Nozickians." But cf. SANDEL, supra note 7, at 62-63 (presenting Nozick's "philosophical defense of libertarian principles" and "challenge to familiar ideas of distributive justice"). Even before he decided that rent control was a fine idea (at least as long as he was on the receiving end of the check), Robert Nozick was not among the most influential figures within libertarian thought. In my entire life, I have met exactly one libertarian who claimed to have been influenced to any appreciable degree by Nozick. To be clear, I am not criticizing Nozick as a philosopher; his sheer brain power put me to shame, and he had profound and interesting thoughts on every subject that he addressed, from epistemology to Austrian economics. My point is only that, from 1974 onwards, many libertarians have not regarded Nozick as a significant contributor to libertarian thought. He may well be taken more seriously as a libertarian thinker by non-libertarians than by libertarians.
12. For the classic introduction to the family feuds within libertarianism, see JEROME TUCCILLE, IT USUALLY BEGINS WITH AYN RAND (1971).
13. For some of the extensive libertarian writings on transfer of ownership, see Randy E. Bamett, A Consent Theory of Contract, 86 COLUM. L. REV. 269, 291 (1986);
14. N. Stephan Kinsella, A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability, 17 J. LIBERTARIAN STUD. 11, 11 (2003).
15. See, e.g., HANS-HERMANN HOPPE, A THEORY OF SOCIALISM AND CAPITALISM 19-24 (1989);
16. Stephan Kinsella, What Libertarianism Is, LUDWIG VON MISES INST. (Aug. 21, 2009), http://mises.org/daily/3660;
17. Stephan Kinsella, Thoughts on the Latecomer and Homesteading Ideas; or Why the Very Idea of "Ownership " Implies that Only Libertarian Principles Are Justifiable, MISES ECONOMICS BLOG (Aug. 15, 2007), http://blog.mises.org/6992/.
18. See, e.g., RANDY E. BARNETT, THE STRUCTURE OF LIBERTY 68-71 (1999).
19. See, e.g, Richard A. Epstein, Possession as the Root of Title, 13 GA. L. REV. 1221, 1238 (1979). Professor Epstein, one should note, would not describe himself as a libertarian. But then again, neither Hayek nor Friedman called themselves (or were) libertarians, but that does not diminish their influence within libertarianism.
20. For a very brief version of this kind of argument, see G. E. Morton, Getting Rights Right: Reply to Van Duffel, 21 CRITICAL REV. 109, 114-15 (2009).
21. See Edward Feser, There Is No Such Thing as an Unjust Initial Acquisition, in NATURAL RIGHTS LIBERALISM FROM LOCKE TO NOZICK 56, 58-59, 66 (Ellen Franken Paul et al. eds., 2005). Professor Feser has since disavowed this argument (and strong libertarianism) on, if I understand him correctly, essentially theological grounds.
22. See Edward Feser, Reply to Block on Libertarianism Is Unique, 22 J. LIBERTARIAN STUD. 261, 261-62 (2010). He could still have been right the first time.
23. See, e.g., TIBOR R. MACHAN, INDIVIDUALS AND THEIR RIGHTS 149 (1989) ("The issue is not whether entrepreneurs or capitalists or workers producing and selling deserve what they receive. Some do and some don't.").
24. See, e.g., Stephan Kinsella, The Death Throes of Pro-IP Libertarianism, LUDWIG VON MISES INST. (July 28, 2010), http://mises.org/daily/4601;
25. Roderick T. Long, The Libertarian Case Against Intellectual Property Rights, FREE NATION FOUNDATION, http://www.libertariannation. Org/a/f3111.html (last visited Mar. 20, 2011). Libertarians, of course, are far from unanimous about the pedigree and status of intellectual property; many libertarianoriented thinkers are strong defenders of some form of such property.
26. See, e.g., Adam Mossoff, The Use and Abuse of IP at the Birth of the Administrative State, 157 U. PA. L. REV. 2001, 2047-48 (2009).
27. See, e.g., MURRAY N. ROTHBARD, THE ETHICS OF LIBERTY 33 (1982);
28. Carl Warner, The Proprietary Theory of Justice in the Libertarian Tradition, 6 J. LIBERTARIAN STUD. 289, 289-90 (1982);
29. Stephan Kinsella, How We Come to Own Ourselves, LUDWIG VON MISES INST. (Sept. 7, 2006), http://mises.org/daily/2291.
30. What kind of foundation can there possibly be for moral theory? In for a nickel, in for a dime, so. Professor Sandel notes that Bentham (and Mill as well, in his widely misunderstood move from the fact of the principle of utility to its value) claimed that the principle of utility was a kind of moral axiom that was presupposed by any attempt to deny it. See SANDEL, supra note 7, at 34-35. The utilitarians had the right idea but the wrong principle. The trick is to find that which makes the ethical concept of "value" possible and meaningful. Rand thought that it was "only the concept of 'Life' that makes the concept of 'Value' possible."
31. RAND, supra note 8, at 1012. I would say "conceptual consciousness" rather than "life", but given Rand's understanding of "life", I doubt whether it makes much difference. In any event, that is the direction that a foundationalist argument might take.
32. For whatever it is worth, the shape of the answer that I would give were I ever to speak again is best described in the neo-Aristotelian (their description), neo-Randian (my description) analysis of DOUGLAS B. RASMUSSEN & DOUGLAS J. DEN UYL, NORMS OF LIBERTY 265-83 (2005).