 Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Aaron Ross Powell, editor of Libertarianism.org and a research fellow here at the Cato Institute. And I'm Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies. Joining us today is Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center, a senior fellow at the Cato Institute, and the author of, among many other books, The Structure of Liberty, Justice and the Rule of Law, which recently got a new addition. The Structure of Liberty is a pretty comprehensive defense of libertarianism starting at the bottom and working its way up. And at that bottom you have natural law. Can you tell us what you mean by that? Well, natural law is simply the regularity or order that's in the world that we live in. Sort of based on the nature of the world we live in, it adheres to certain principles that are discoverable and which are discovered by many different disciplines. Medicine and agriculture and engineering are all discovering the natural law of their own disciplines. And we don't think there's a big mystery and when nobody asks a doctor or a person who's teaching medical principles, well, where do you find those medical principles? Where are they? Show me them. No, no, no, it's not how it works. And we don't say that to someone who's practicing agriculture, well, are the principles of agriculture in the dirt? No, no, they're not. So these principles of regularity are discoverable are the product of human minds. They're not in nature itself, but they're the way we comprehend nature because nature has regularities about it. And so it turns out that what's true of medicine and what's true of agriculture engineering is also true of how we structure society. This makes it less evanescent than a lot of people seem. When you talk about natural law, you get this sort of nonsense on stilts type of invocation, often seeming to have God involved and none of this seems to require God involved. No, the way God fits into the picture, I mean, if you go back to Aquinas, and I like to do that because I don't think you can get anybody more Catholic than Thomas Aquinas. But I mean, if you go back to Thomas Aquinas, he distinguished between three kinds of law. There was the human law, which was discoverable by promulgation or publicization. There is the divine law, which was discoverable by revelation. And then there's the natural law, which is discoverable by reason. And so if Aquinas can distinguish between divine law and natural law, I think it's okay for us to distinguish between divine law and natural law. Where God fits into the picture in the classic natural law writers, like Locke and others, is that the natural law is based on the order that's found in the universe and their theory was that God was the source of that order. God made an orderly universe and therefore God is the ultimate source of the order that we're discerning by reason. But these are not like divine commands, which is what actually was called the divine law. And that wouldn't change for physics, for example. They thought that the Newton thought physics was based off of God's order. And if you don't believe in God, you still believe in it. I mean, it no more disqualifies or delegitimates political theories or political principles that once it was thought that the order in the universe comes from God, then it would delegitimate medical theories or theories of other disciplines to think that as well. Now, the one distinction I do make in the book, which I actually got from George Smith and I got a lot of, I was heavily influenced by George Smith. Who writes for the site weekly? And he and I, I should just parenthetically say that he and I lectured at the IHS summer seminars starting in 1982, I think it was. Maybe 1981 actually. And so we would listen to each, we weren't always at the same seminar, but eventually we were and we would listen to each other's lectures. I think I listened to his lectures more than he listened to mine. And I was greatly influenced by the lectures that he had. And I don't think I would have ever written the structure of liberty. And I certainly don't think I would have reached the conclusions I did without having heard him speak. But one of the distinctions that he made was between a descriptive discipline and a normative discipline. Descriptive disciplines like physics. We were just trying to figure out how stuff works. A normative discipline is where you're trying to figure out how you ought to do something. And a normative discipline, again, medicine, if you want to make people well or cure people or prevent them from getting sick, then you ought to do certain things. If you want to, agriculture, if you want to grow crops, then you ought to do certain things. These are all odds based on what the objective of the discipline is. So a normative discipline is not the same thing as a descriptive discipline. So natural law is typically what governs these normative disciplines. And that's the if and then is very important in this, because that's how you connect that ought out of there. You could just say... You call that a hypothetical imperative. Right, right. Well, it's given if then. Logically, it is a hypothetical imperative if you adopt a Kantian way of looking at things. But it's given the nature of human beings and the world in which we find ourselves. If you want to achieve a certain objective, then you had to go about it this way. And so given the nature of human beings and the world we find ourselves, is the natural law inquiry, the inquiry into nature, if you want to achieve a certain objective, that will vary with the discipline. So if you want to make people well, if you want to grow crops, if you want to erect buildings, if you want to have a society in which people can pursue happiness in proximity to each other, then you had best respect these basic principles in order for that to happen. And so they all have the same logical structure. I was curious about that because you use these examples of, say, architecture. So if you want to build a building that's not going to fall down, then you have to follow these particular laws. Or more specifically, given the particular laws of the universe. Given the nature of the world, meaning given the fact that there's gravity and there's mass and there's weight and there's this and there's that, then given all those things, if you want to build a building that will hold up, then you have to follow these principles of engineering or architecture that we have discovered and they're not perfect and there's a matter of judgment as to how they're going to be implemented or not. But we don't question whether they're made up. Then the question I have is, so you say you turn this into then something about political systems by saying, given our nature as human beings and the nature of the world, if we want, you say, happiness, prosperity and peace, then we need to respect these libertarian principles. And I guess my question is, we haven't had a state in the history of the world that respects the libertarian principles, especially at the really kind of rigorous level that you established them. But we seem to have done, I mean not always, but often we do pretty okay when it comes to happiness, prosperity and peace. And so does that, is I guess the hypothetical imperative there maybe less imperative than the one for building a building that's not going to fall down? It's a good question. And first of all, let me say that in the afterward of the new edition, I respond to many criticisms, one of which is the happiness, peace and prosperity formulation. And I tend to concede if I had to do over again, I would have just said happiness because I think peace and prosperity are simply means or things that you want in order to be happy. So happiness is the ultimate end. And so there was a few things in the afterward I concede I would have changed if I had to do over again. The other thing I would, maybe you're going to get to this later, but the other thing I would have changed is I wouldn't have called private property several property. Well that's the Hayek term isn't it? I took it from Hayek, I liked the term, it meant something in terms of several separate, all the individual and stuff, but it's just such a weird term that nobody gets that I actually would have just bit the bullet and said private property and gone with it. So that's another thing I would have changed. But back to your question, yeah I think that's right. To repeat the question if those of you listening have lost the track of what it is, we seem to have better societies, worse societies, we do okay and there's no, by no means a libertarian society. There's a couple of different aspects of this. First of all what I'm arguing for I think is the core of classical liberalism. And these are these core fundamental rights, the five core fundamental rights that I talk about in the book. It's the right of property acquisition, the right to hone and use property, the right to make contracts, the right to have restitution, to engage in self-defense and the right to have restitution or compensation when your rights are violated. These are the five fundamental rights. They are the five fundamental rights of libertarian thought but they're also I believe the five fundamental rights of classical liberal thought. So to be a libertarian I think the idea here is you try to work with just those rights and take just those rights as far as they can go without adding anything else. Now that's kind of what makes a libertarian a libertarian and the more radical libertarian you are the more you just stick with those five rights and don't add anything else. At some point or another people get off the bus and they're less radical. And classical liberals I think pretty much all agree on the core of these rights. My view is that most societies that seem to be doing pretty well are basically respecting these rights. So they're not respecting them perfectly and that's why there's room for improvement. And as a libertarian I think as a classical liberal and then also as a libertarian and then also as a radical libertarian I think we would do better. We would all be better off. We would be happier. We'd be able to pursue happiness better if we protected these rights better than we do. But I think any society that ceases to protect them at all collapses. Almost as much as a building. And it seems too that the buildings will fall immediately but the way that if you have a structural problem in society it tends to spin out of control more slowly and add up to itself than the immediate collapse of the building. I would also say in the early part of the book when I use the building metaphor I argue that a very well constructed building you actually can cheat a lot and steal from it and it won't fall immediately. You have a lot of redundancy built in, over-engineering built in. And I say that for example you could take a lot of bricks from the foundation and you can make a taller building out of it but if you keep that up. Like playing Jenga. Yeah. If you keep that up it's not a sustainable, it's not a sustainable political theory to take bricks from the foundation and make a taller building. Sure. So maybe the closer analogy would be to the political, to the political rules would be something like health or diet instead of building. Because building it's gonna, you know, you build it wrong it's gonna fall over. But health, we know eating certain ways are the best way to, they're gonna improve your health but if you don't do those there's a lot more wiggle room there. I still think, I like the building metaphor and I think we actually know quite a lot more about this than we do about our health principles which change every year. What was up was down. What was down was up. I mean you just wait a long, you know, it's like the Woody Allen movie Sleeper. All the chocolate is good for you. Smoking is gonna be good for us. I mean that's the one thing I probably think is not gonna be good for us but almost everything else they said was bad is good and the reason why the whole society is fat is because they've been eating what the nutritionist told them to. So I think we know a lot more about this stuff but I do think that if you really fundamentally pull the props out from under these five rights the society does collapse. It's the reason why war communism, so-called war communism which was actually real communism caused the mass starvation of millions and millions of people until the communists decided to reintroduce something like private property into their agricultural system so that they could survive even though of course they didn't call it that that's what I'm saying is that every society that's functioning is respecting these principles to some degree or they just wouldn't be functioning. That's my answer. It's kind of non-falsifiable. The sort of the empirical test I offer for which society is respecting these principles better than the others is to look and see which way the refugees are going, which way which societies are having to build walls to keep people in and which societies are trying to keep people out and that's sort of your empirical test of which society is doing better relative to other societies around. So going back to the natural law we should go back to the sort of train of thought here. We do the given if then to establish how natural laws work but that's not the same as natural right, correct? Right. And then you move on to talk about these are what natural rights would be and so how do you get to natural rights? Natural rights is kind of the equivalent of the principles of medicine and the principles of architecture. So given the nature of human beings the whole formulation, the whole way of reasoning I call natural law reasoning. So it's all natural law reasoning but the upshot of natural law reasoning as applied to a society in which you want people to be able to pursue happiness while living in close proximity to each other is the protection of these rights which are natural rights. So that's the conclusion of your reasoning of your natural law reasoning to reach the conclusion that these five fundamental natural rights deserve to be protected, must be protected if you want a society in which people can pursue happiness. And you use that. You describe that in a way that I talk about too. The word jurisdiction in the sense of a zone of control like I often call it a zone of autonomy and having a zone to control for yourself helps solve some problems and that's a lot of the heart of your book. When I wrote this book I started writing this book in the 1980s I think it was. I think or maybe the early 90s whenever it was. While I was doing it was an outgrowth of my IHS lectures and my IHS, all these summer lectures I was giving. And when I wrote it I adopted a lot of alternate terminology in order to make this theory safe for consumption from people who didn't want to see anything crazy. So instead of liberty I tended to use the word discretion. I only use the word libertarian once in the entire book in the beginning. Something like no matter how libertarian one is X but that's the only time I used it. I called it classical liberal. I used several properties instead of private property. Jurisdiction, sort of like with the discretion. So I used a lot of other words to try to get people to accept the substance of the analysis without being turned off by the rhetoric. Since I wrote the book the world has changed intellectually a great deal. Now for the new edition I'm able to say in the dust jacket this is a libertarian theory. I say it in the afterward that this is always a libertarian theory. It is a libertarian theory now. So there's the modesty of radical libertarianism which is what I'll be speaking at Cato University about this summer and which is in the book. I'm able to take these words out and now really use them. The bulk of your book is taken up by how these principles we can drive from natural law. I just want to make it clear to the reader. The only time I discuss natural law at all is in the introduction. The reason I wrote that introduction is because the rest of the book is really not philosophical at all. Only the first chapter is. The reason why the first chapter had to be is because every time I would give this thesis the first question anybody would ask me was what are you talking about? Is this deontological? Is this consequential? This is blah blah blah blah blah. So you had to situate it. I situated it as best I could but remember I'm not a philosopher. I don't claim to be. I know enough about philosophy. I hope to keep myself out of trouble. That's what you need to know. It's like you don't know enough law not to get yourself thrown in jail. So that doesn't make you a lawyer but that is useful. So I think I know enough philosophy from my training to not say something that's philosophically stupid but I also don't claim to be one and the book is not that philosophical after the first chapter. And I'll say when I was a philosophy major and my big influence, I've already mentioned George Smith, the other big influence who I credit in the preface is my teacher Henry Beach who was a great Aristotelian-Thomas natural law philosopher and that's where I learned my natural law from when I was in college at Northwestern. So what always frustrated me about listening to all this stuff about natural law is that everybody would talk about natural laws based on reason, natural laws based on reason and then nobody would actually do the reason in order to tell you a conclusion. They were just debating about what it was but without telling you what it was. So this book is the that part. It's the putting the philosophy to one side, getting that out of the way and now let's just engage in reason and figure out what these principles are. So it's the delivery of the output that what this book is about. And so the bulk of the book is how do we address these three problems? Yes. Knowledge, interests and power. Right. So maybe let's start with knowledge. What is the problem of knowledge? Right. There's just three social problems that I claim every society has to address somehow and the proof of the pudding is in the eating. So you have to, I mean, when you just state them abstractly, people go really, you know, when you say the nature of human beings in the world in which we find each other, everybody gets their hackles up and they go, what do you mean the nature of human beings? What kind of nature you're talking about? But no, no, just cool out. Don't get excited. Just look at what I'm saying the nature. The aspects of nature I'm focusing on, I think they're self-evidently true. Try denying it. For example, you know what's in your head. You listener know what you're thinking about right now. Nobody in the room with you knows what you're thinking about. I certainly don't know what you're thinking right now. And you listener who's listening to this audio tape or this podcast audio tape, that's pretty archaic, who's listening to this podcast would not be able even if you try to express everything that's in your head right now. Only you know how you're feeling, only you know when you're hungry, only you know that sort of thing. This is just part of the human nature. You know it and we don't. Similarly, the three of us sitting in this room understand what's going on in this room, but people outside this room can't hear us right now, including the engineer who can't hear us because the audio system is defective and we can just see the needles moving. This is very local knowledge. This is really local knowledge. So we're sharing in this experience right now, but nobody outside this room is at this moment. You who are listening, we're sharing in it now in your own private space, but there are billions of people who don't have access to this knowledge. So the problem of knowledge is how we make use of the fraction, this tiny, teeny fraction of knowledge that we have about our own situation and the situation that's local to us while somehow, mysteriously, magically taking into account all the knowledge everybody else has of which we are inevitably ignorant. So the problem of knowledge is also the problem of an infinitesimal spark of knowledge. I mean, like a molecule of knowledge in a huge Olympic swimming pool that's vastly empty, which is our ignorance. And so there's got to be some way, if we're going to be happy, if we're going to pursue happiness, we've got to put into action what we know while taking into account what everybody else knows. It seems like when you put it that way, it's an insuperable problem. How could you possibly solve it except we solve it every day and we solve it by adhering to these fundamental principles? You keep that local control, you respect the rights, and you give people the jurisdiction over the things they know about and help them disseminate that knowledge outward in the world via the Hayekian price system. Resource prices play a big role in this story and I obviously got this from Hayek. One of the things that I tried to do in this book and I was hoping that I was successful is I was trying to integrate into one framework lots of different theoretical approaches that people are attracted to that are not mutually incompatible with each other but they somehow are speaking across purposes so you start with the Hayekian problem of knowledge but then you move to the problem of interest which is the fact that our interests don't always blend and we need a sufficient motivation in order to actually act on our knowledge and the problem of interest is something that economists talk about in terms of incentives. So that comes in there and then you've got the problem of power which is the third social problem and that's really basically an aggravated form of the problem of knowledge and the problem of interest. Once you decide that you need coercion or force to address the problems of interest because how you get people to adhere to the rules when they don't want to, you might have to coerce them. Once you introduce coercion into the picture by using force, then you have introduced a new problem into the equation and that is problems of knowledge that is when do you use force, knowledgeably when do you correct to use it and problems of interest how do you prevent the people who are authorized to use force from abusing it because of their interest and that's how you end up with three social problems. So that's all pretty abstract. What is solving these problems look like in the real world as far as our political institutions or how we set up our society or state? Well, at the most obvious level, you have private property in which you just took a sip of that water and it's not my water. I've got a bottle of Mountain Dew. Everybody knows that's my favorite drink and I have one of those. I bought it from a store. I exchanged stuff I had for stuff that they had and we both were better off as a result of that exchange and now I have that. Everybody knows what their stuff is. When I try to demonstrate this sort of instinctively in a room where I'm not wired up, I'll just reach over to grab somebody else's laptop and say, that's mine. That's very jarring because it isn't. This person, it's really part of the other person's life. So private property at the most basic level is how we do it and then I just already made a reference to Freedom of Contract where I exchanged $2 even at the CVS for this Diet Mountain Dew, 20 ounces and I was made better off. CVS was made better off and I'm enjoying it right now and so that's concretely how we do it. It also seems like you're talking about very old ideas in the sense of Madisonian constitutional framers, Enlightenment-era philosophers about how do you control power, how do you control interests. So with constitutions, theoretically, those are also supposed to solve some of these problems too. Well, one of the things, points I make, I think in the original book and I think also in the new afterward and that is that classical liberals were the people who first really took the problem of power seriously. And even today, there's a lot of people who don't take that seriously. They basically argue, well, here's the right answer. Let's make people do it. But wait a second. Once you empower people to make people do the right answer, then you've got a new problem. How are you going to deal with that? Oh, well, we'll deal with it somehow. They whistle past the graveyard. They don't really try to address it. Classical liberals, including our founders, did try to address it. They took this problem very seriously and they had a number of strategies for addressing it which were imperfectly institutionalized in our own governmental systems, like, for example, checks and balances and separation of powers and other things. And voting, which establishes reciprocity between the ruled and the rulers, they saw the problem. They took it seriously. Most other competing ideologies today, particularly those on the left, but also those on the right. And I mean, I talk about both in the afterward. I talk about the legal moralism of the right today and I talk about the – what was the other phrase on the left? Progressive – No. I mean, I can't even remember my own jargon there. Possibism – I can't remember. This is embarrassing because I didn't reread the thing before I came into the studio. Modern progressivism. No, well, it has to do with redistribution on the left. But I mean, progressive – you don't have a copy of the book with you? Not right now. Okay, well, you're going to have to get it up there on your kindle. That's the problem. You need hard copy. It's hard copy. It's much easier to access than those things are. Look at him pushing buttons right there. So this is really embarrassing. Anyway, but the idea here is that neither one of these views takes seriously the power that their views require to be put into effect, where classical liberalism does, I think, take these into account. And how would you respond to – I mean, there's this sense that you're going to get of that's very simplistic and simple-minded that doesn't truly deal with the problems of the world. And you talk about freedom of contract. You know, deal with the problems of exploitation and laborers and all these things. I mean, that's going to be probably the main response you're going to get most of the time. There's a lot of responses of a lot of different issues. Right. But how do we treat those in general? Right. Well, first of all, the term simplistic is one of my pet peeve words. I used to hear it when I was younger. It's simplistic. It's a pejorative, obviously, but normally in other theoretical disciplines, saying something as simple is like saying it's elegant. It's saying something good about the thing. The problem with – and in general, in the abstract in response to arguments that the world is so much more complicated and stuff, it's precisely because the world in its reality is too complicated for us that we all engage in simplifying thought mechanisms in order to understand it. Understanding the world isn't translating the complexity of the world into an equally complex theory. If that's what it takes, you haven't really understood anything. Science doesn't work that way. None of these other disciplines work this way. They are all simplifying disciplines to abstract from the particulars and yield oversimplified principles in order to act in the world. And if your theory was as complicated as the world was, there would be no need – your theory wouldn't do any good. You'd be synonymous with the world. It makes sense. You have to be as complicated as the world. Exactly. So that's stupid, actually. So it's a stupid criticism. That's part of the stupid criticism. Now, criticism isn't that it's too simple, but it doesn't take into account salient, important factors that ought to be taken into account. That's a different matter, and I do think that is what most people have in mind when they make this argument about too simple or simplistic. And then I would just have to say, let's see how we – let's see – tell me how we take them into account that doesn't undermine or take away from what I'm saying about the necessity of these five principles. It's not enough to say, there's these other things out there. And actually, this is the other thing that I do talk about in the afterward, and that is that unless you're some kind of radical – I mean, like a true utopian communist, which there aren't – Total control. Right. Unless you're one of those people. By and large, all philosophies want to do is add stuff to the five basic rights. They don't want to take away the five basic rights, or at least they'll deny they do, but they want to add stuff to it. Well, adding stuff to it is obviously going to make it more difficult, more complicated, and the question is, fine, you want to add something? Fine. Tell me how you add something without detracting from how we're solving these problems. Now, there may be a balance, and this is the reason why classical liberals have a variety – take a variety of approaches, and some get off the boat sooner than others. Again, this is a classical liberal defense of these five basic rights. It is not a repudiation of other things. It is not – it does not purport to be a refutation of adding anything to it. Only it's trying to emphasize why these things are valuable and why the typical kind of argument you get primarily from the left, but you really also get both of these arguments from the left and the right, and that is to say, well, because you need more than this, we have somehow refuted this. That's false. You haven't refuted this. You may argue you need more, but then you're going to say, how do you get more without taking away these things? These things are necessary. It's not an answer to my claim that these things are necessary to solve these pervasive social problems, to say there are other social problems. You still have to tell me how we solve these social problems or deny these are social problems, and I defy people to deny the social problems I identify are truly problems. And if they acknowledge their problems, they have to be solved, and if this is the solution, now tell me how you add more to it without detracting from the solution. How strong are these? One of them is private property we've talked about, but how strict is the respect for private property that's needed to solve these problems? Because I can see, would this prohibit even basic taxation? Because that would be forcibly taking money from somewhere? As I said in the beginning, if that were true, this book doesn't make out that. It does not deliver that conclusion. This is a defense of the five basic rights that are at the core of classical liberalism. Libertarians, as I said before, try to get as far as they can on only those five rights and nothing else. And a radical libertarian says basically those are all there is, unless maybe there's another version of radical libertarianism I'm not familiar with. So to defend that, to defend that's all there is, you'd need more than what I produce in the book. I don't make that claim. I'm making an affirmative case for these five rights. And then I'm making a claim that I just made again, and that is that if you're going to say you need more and different and extra, you're going to have to explain to me how you get that stuff without undercutting what you need to solve these social problems. And so it's not that you can't answer the analysis I present does not categorically exclude the possibility of answering that question, but it does put the burden on those who put forward these extra things to answer that question. And that's a burden they don't want to accept. They typically just want to use their extra to refute the first principles. And that's what I say is an illegitimate move on their part. One of the things that you talk about in the book that you do a very good job of is compossibility, which is sort of one of the things that you're kind of getting it now. Can these systems of rights work together? If you add something, are you going to take something away from the five basic principles? And just to first fill in our listeners, the difference between positive and negative rights, which I don't think we've discussed yet on free thoughts, and how those are different types of claims, which you do a very good job of explaining the difference between the two types of claims. Well, I typically don't use the term the distinction positive and negative liberty because negative sounds bad and positive sounds good. And I don't think that the terminology ought to prejudice us one way or the other. So I think the more descriptive term is liberty rights versus welfare rights. So liberty rights are freedom of action type rights, and welfare rights are rights to stuff of various kinds. And so if you put it that way and you need liberty rights in order to solve social problems and you're going to add to it rights to stuff, well, the rights to stuff is going to come at a price. And I agree that some societies handle this better than others, but the question is, do you really need rights to stuff once you've gotten your liberty rights protected? And property rights are not rights to stuff. I think that's one of the key misunderstandings about property. Property rights are the rights to liberty within your jurisdiction. Now, there is boundaries, and that's a physical thing, but we say countries have boundaries. It's really no different than the kind of freedom that sovereigns are supposed to have within the boundaries, governmental sovereigns are supposed to have within the boundaries of their country that other sovereigns are not supposed to be interfering with. And I think, and this is actually something I've only been working on in the last few years, I think it's really better to think of each one of us as sovereigns over ourselves at the risk of sounding like these crazy sovereign citizen folks out in wherever they are, but we can't help it ourselves, and that simply means like any other sovereign, we have jurisdiction over our domain, and our domain is defined by private property, but what that's really defining is the extent of our liberty. So this is a liberty analysis as opposed to a stuff analysis. Once you have your liberty analysis more or less nailed down, and that's not easy because we as lawyers know things get very complicated very quickly, and first principles will not resolve all legal problems. Can I tell an anecdote about that? I mean, I've learned this the very first day I met Murray Rothbard. When I was a first year law student, I came down to Fordham with my friend John Hagel, and he introduced me to Murray, and Leonard Ligio was giving a speech at Fordham, and Murray was in the audience, and we ultimately ended up in Murray's living room, and I was just like thrilled because I read Murray when I was an undergraduate, and he had this huge influence on me. I'd written him this fan letter when I was going to law school. In fact, that's how I hooked up with John Hagel because he knew John, and he gave the letter to him. Murray gave John a copy of my letter, and that's how he got hooked up, and now John takes me down to New York and I meet Murray. We end up back in his living room. Now I'm a first year, first semester law student, and we've got all these crazy hypotheticals, especially in torches class, that I'm having a hard time evaluating as a libertarian. I'm a radical libertarian already. I should be able to have the answers to the questions, and I wasn't coming up with them. So John and I started firing off hypotheticals at Murray, and Murray couldn't answer them either. It's like, it couldn't answer them. This was quite a revelation of Mr. Libertarian can't answer these questions any better than I can. Well, maybe that tells us something about the limits of libertarian principles, and that is that they are very abstract, and they're abstract I realized years later for a reason. We derive them by abstracting from the particulars of social life to come up with these simple or simplistic principles. But because they're derived from abstractions from particularities, when the particularities are reintroduced in a real legal system, the principles are not always determinant with respect to how particularities are going to be handled. It's just an inevitable part of how you reach the principles in the first place. At that point, you need what I explained in the book is the rule of law. The subtitle of this book is Justice and the Rule of Law. At the time I wrote it I felt libertarians tended to elevate justice and give the rule of law a subordinate position. Conservatives, on the other hand, would elevate the rule of law and give justice a subordinate position, if any. I was arguing for why it's true that really first comes justice and then comes the rule of law. But operationally, the rule of law is as important to instantiating these principles as abstract principles are themselves. And that's when you need the rule of law to establish conventional rules that are acceptable within the basic framework. And they're not natural. They are not natural. The rules of contract law, which I teach as a contracts professor, are not natural law itself, but they're a way of implementing freedom of contract, which is the natural rights. And the law can vary from place to place over time and depending on particularities and time, place and circumstances, these rules can vary a lot and still be consistent with the natural rights, the fundamental natural rights. So one of the things you bring up in a footnote in Structure of Liberty is a reference to Frederick George Easy Cases, which is a very good law review article and something that it's worth reminding people of, that the best rules solve all these cases or keep them from even coming to the point of needing some sort of adjudication. And those are really good rules that most of the time they have 95, 98% of the problems and then you deal with the ones on the end. Really far more than that. I mean, every little kid who grows up with a backyard and a front yard and they have neighboring kids understands line and vine. In fact, that's the first thing kids say is mine. Mine. And they don't know this is the line. So it's true that at the line there's some border time issues and sometimes you don't get the line right, but within your yard you really know what's yours and we all kind of know what's ours and those things just never get litigated. You might think billions and billions and billions of issues don't get litigated and then there's a few thousand that do. You have a discussion in the book about punishment and restitution and how we should handle enforcement and then what we should do when people break these rules. You end up coming to a conclusion that's probably counterintuitive or at least sounds a little weird to most of our listeners, which is that we shouldn't have punishment, that all violations should be handled by restitution. Can you explain that a bit? Yeah, I came to this view, when I was a law student I wrote a paper called Restitution of New Paradigm of Criminal Justice which I wrote as a Harvard Law student for my third year writing requirement. I wrote it with an IHS summer grant and it was an interesting project. It ended up being published in Ethics, which is the premier philosophy journal published by the University of Chicago Press. So it was a law student article that got published in Ethics. It did not get an A, however. It got a B plus which at Harvard Law School is a pretty bad grade actually. So it was and it actually got published in pretty much the form it was turned in on. Ethics didn't edit that much. So I staked out this territory when I did that but I modified I supplemented the position by the time the book was written and so I pushed very hard and this was one of the most controversial things I've ever had to defend over the years which is why restitution should be the predominant form of response to criminal conduct and not punishment. So first of all let me say what I mean by that and then I'll say how I supplemented it. What I mean by that is that we should not be dealing with criminals on the basis of their badness. I think criminals are bad. I mean I was a criminal prosecutor for four years. I met a lot of criminals. Some of them are really bad. Some of them are not that bad but some of them are really bad. There's variations just because you're a criminal doesn't really make you that bad but there are really really bad ones but that's not what we should be judging what they've done as opposed to how bad they are. How badly did they hurt somebody? How badly did they violate the rights of others and then we should focus on making them make it up to their victims and that should be the primary focus of the criminal justice system making them make it up to their victims and that would probably mean in most cases making them work to pay off their victims the debts they owe to their victims and that's the 13th amendment which prohibits involuntary servitude makes a specific exemption for punishments for crime so that it's okay. It's constitutional. Alright that's where I that was the paradigm I developed. By the time I wrote the book I had supplemented that paradigm and this was something that again happened in sort of lecturing at summer at IHS with George around and essentially what I developed was the idea that what we one of the things that bothers us about that is the fact that there are dangerous people out there and what about them and I actually think the problem of dangerous people is not a problem of punishment it's a problem of it's a problem of self-defense so you have the fifth right is the right of restitution for violations of your rights which is violated every day of the week because criminal justice does not make restitution of victims. It's not why it's organized around punishing the bejesus out of people but the fourth right I defend is the right of self-defense and what I think of with a kink of dangerous people is I think that we are entitled to use self-defense against people before they actually strike a blow against us. Everybody understands that intuitively you don't actually have to wait for someone to pull the trigger before you can defend yourself against somebody who's drawn a gun on you. Well I think it can happen that people by their prior conduct can make themselves out to be a standing out to other people and so it is not so much and in some respects here's where in some respects their badness comes back in if they really are bad people if hurting other people has become what Aristotle would call second nature to them then they're really dangerous and they need to be segregated from us so we would hold them separately apart from their duty to make restitution not because we're punishing them for their badness but because we're protecting us for them from them and that's why transportation of criminals from England to Australia made sense it's why transporting to the Georgia make sense we can't transport criminals anymore so we put them into penitentiaries where we separate them from the general community and as a result of having done that a lot in the last two or three decades crime rates have really gone down because the ones that are the most dangerous aren't with us anymore they're committing crimes against each other in the penitentiary but they're not committing crimes against us as long as they're in there. I don't view that as punishment punishment is making them suffer making them pay now let me just say this as a human being I believe in punishment I have a retributive streak like everybody else I was a prosecutor it sort of helped me motivate me and it doesn't bother me at all when I see bad people get their just desserts but it's authorizing the state to issue those judgments that I have a problem with much as it satisfies me like it satisfies others to see it done I'm not sure I trust the state to do it I think it's enough if the state would protect the rights of us by making these folks make restitution to victims and putting them someplace where they aren't going to harm us if they have proven by their conduct that they are a standing threat to the community to address potentially one objection I can imagine people having when you talk about self-defense that's outsourceable so you're not saying I actually need to be wandering around with a weapon to defend myself but I could have a police force whether private or not the way the law is written this way the positive law is written today is you have a right of defense of self and others that's just it's the defense of self and others is and there's the defense of self others and property but there's different rules governing all but the defense of self and others is a well-recognized one I think that the good thing about your viewpoint when I try to explain people restitution it's it refocuses the question about on the odd issue of why do we pay someone when we have a fender bender we pay them or their insurance pays them but when we do other types of crimes like maybe shoplifting or something of the criminal nature we pay the state that is a weird thing which you refocus on to saying we harmed the shopkeeper too and you know there's a fine we give to the court if we get caught but why don't we give that to the shopkeeper at least for the first I mean that makes much more sense well in most cultures throughout history they've been dominated by compensation or what they used to call the verguilt in Europe in medieval world medieval systems and all tribal systems that don't have centralized governments are compensatory in nature now sometimes it's individual compensation sometimes it's group compensation you compensate the clan of which the person's a member but it's very compensatory what in medieval Europe they had the verguilt which was the compensation you owed for committing a crime and then if you turned out to be dangerous what happens is if the communities ended up having to pony up for your crime because they would have to pay the other clan then they would have an interest in policing you and if you turned out to be a repeat offender what did they do they kicked you out and they made you an outlaw the term outlaw meant outside the protection of the law they didn't actually kill you and they didn't actually punish you but once you were made an outlaw and they withdrew their protection from you anyone else who wanted to kill you and punish you could do so with impunity and that was a really tough spot to be in so by withdrawing protection you end up quote punishing unquote people without directly punishing them so it was only with the creation of the centralized state that you then and or the rise of the kingship actually when the king started intervening the monarch started intervening in this local tribal system which the people were very reticent about giving up they were very reluctant to give up their rights to compensation but eventually the king superseded them and then the kings breaching the king's peace turned out to be the major offense and it's sort of the way it is today is your crime against society is not a crime against you so it turns out if you're if you are raped and you are assaulted you have not you are not the official victim of the crime in our legal system the people of the state I represented as a prosecutor to the people of the state of Illinois and I didn't represent you I represented the people so you so what happened to you is simply a crime against the polity and not against you at all well I think that's perverse and if people are actually if that perversity is expressed then people they should they would they would rebel against it because that doesn't sound right to them I'm curious how we distinguish dealing with bad people so preventative from punishment two lines the first is that the concerns you raised about why you know most of us feel like punishment can be morally justified but we don't want to give the state that power because there are concerns would also seem to apply to preventing bad people from doing things you know these are still these judgment calls and we have to lock people away and then similarly the punishment that we often inflict upon people who are convicted of criminal acts looks very much like protecting us from bad stuff you know we don't we don't tend to I mean there's the death penalty but outside of that what we do is we lock these people away and that's their punishment and protecting us from bad people so the two do they collapse into each other well first of all in terms of giving people their just desserts that's a much bigger issue than simply people who commit crimes there's all kinds of bad people out there some commit crimes some don't I like them all to see I like to see them all get their just desserts don't authorize the state to pass out rewards and punishments to generally people well if that's a good idea let's just do that let's just make all the good people give all the good people a check in that morning and a pat on the back and all the bad people we're going to send them away I mean I know a lot of bad people who don't commit crimes so the problem of just desserts is much bigger than the criminal justice system and we don't allow the state to do it so that's on the one hand on the other hand you're right there are serious practical problems with figuring out who would be the dangerous ones it's or even who deserves restitution and how much restitution they should get and in fact the whole amount of dollar putting a dollar amount on this is arbitrary to begin with there's no natural correlation between a particular sum of money and a particular injury that you've suffered we're just basically saying making you better off is better than not making you better off and then there's a question of how much better off we do it these are questions that again have to be handled by conventional rules that are not perfect and they are not available logically from the fundamental principles they're just the way we put them into effect the one I would think is makes the most sense in the case of dangerousness is prior criminality either prior criminality which would attract record which is what generally speaking happens before anybody gets sent to the penitentiary they've committed dozens of crimes dozens of crimes without getting caught several many crimes before they get anything happens to them oftentimes as juveniles where they never get put in incarcerated so they're basically trained to be criminals before they ever get put behind bars so you have a track record I would go by a track record and or these very unusual criminals who really are sociopathic and they just get off on violating other people's rights this gives them affirmative satisfaction those that small subset of all criminals who the criminals are afraid of and those are the people you'd have to judge by crime they committed I mean they would have to be one of these super heinous crimes that you got oh my god I mean these people are defining themselves as dangers to the community you ask yourself why did they do that and if they did it because it gave them satisfaction well let me just tell you something we don't want that person running loose well we're almost out of time but I think we've gone on a bunch of different switchbacks and talked about a bunch of different things but going back to the five core rights and the kind of society that this can create that maybe we're going against so what do you see this in terms of the hope is there hope now to that we could reinstate these are people going to have more hope or are these rights a bygone era that we rescued in the enlightenment and then used and now are going away well going back to the opening conversation I think that if we're if any society's functioning is respecting these rights we're currently respecting them to some degree to some degree or another and it's better and worse it's not all or nothing it's better and worse as soon as you stop respecting them you reach a critical mass of not respecting them then the society collapses but if we're not collapse means we're respecting them and that's true even of communist countries they're respecting them too but there's better and worse and so what we're finding to do is make it better rather than worse and that's and so that's what Cato and public policy institutions are trying to do that's what I'm trying to do as a lawyer make it better as opposed to worse so we're moving on a scale and then when it comes to libertarians radical libertarian positions versus other classical liberals it's a question of how far can you push the paradigm before you before it breaks down we really haven't tried pushing the libertarian paradigm all the way my guess is that if we were ever to try it it would it would be a naturally a gradual process you just not you're not going to push a button one day and suddenly have a libertarian society the libertarian society is somewhat of a model against which to judge existing societies and then as you move in that direction if it turns out our theory isn't so good as we thought it was and problems arise that we didn't anticipate there's that there's more than enough time to modify our theory but in the meantime we try to push forward in protecting these five basic rights just as best as we possibly can at the very beginning we mentioned that a second edition a new edition of the structure of liberty has just been released so maybe in closing can you sell us on that second edition for those of us who perhaps have the first edition is there what's changed and why should we buy another here's where I should have read the afterword before I came over here I mean the number one thing I did is I added a reply to critics I mean there were some excellent criticisms made of the book some from the left and some from the right and some from libertarians that I took pains to respond to in the beginning of this afterward and the other thing I did was I tried to situate so that's important I think and then the other thing is sort of a new thing that was added to it and that is this modesty of radical libertarianism and that is the idea that even though we are thought to be radical we are actually our claims are more modest than our ideological competitors because on the left they want to see that everybody gets the right amount of stuff superimposed purportedly on the protection of these five fundamental rights and creating a mechanism by which everybody gets the right amount of stuff is really hard to do and it not only does it undermine the five rights it's actually just a hard thing to do generally so they want to make things more complicated and worse and more challenging on the right they want to make sure that everybody does the right thing with their liberty so on the left they are concerned about stuff and the other way this left-right thing there are people on the left that want to do both and there are people on the right who want to do both but on the right they are preoccupied with everybody doing the right thing well how are you going to figure that out who is going to be empowered to make everybody do the right thing you got to consume the right stuff and not consume other stuff and have sex with the right people I mean they are very preoccupied with this well this all adds more difficulty to the five basic rights so we are saying we are just sticking with the five basic rights they want to add more to what we are doing and that makes their positions more radical than our positions are our position is more modest let's just stick with these and see how far this takes us they want to add more stuff and that whole analysis is in the afterward that wasn't in the original book that's in the afterward and there's one other thing that I defend in the afterward and that is why bother one of the things you didn't ask me about is the part of the book in which I talk about a polycentric legal order in which there is no government as we know it to provide law and order and why think about stuff like that and I say the reason I defend that way of thinking and why it's useful to think about that stuff is because arguing against a polycentric legal order or arguing one way argument against liberty is that if we take your principles to their logical conclusion then there will be no government and therefore there'll be chaos and therefore that's a reason that's offered an objection to making the first step in the direction of liberty if you actually have the model of no government or no government law enforcement no government provided law enforcement as not such a bad place to be if we ever got there it would actually probably not be so bad in fact it might be better then that deprives the other side of a reductio ad absurdum argument against us therefore they are deprived of the argument for why we can't take any steps in the direction of liberty because to take any steps the logical conclusion of which is to lead to X X is not such a bad place now we can take some steps so I think this is useful to think about not because we're ever going to get it in our life but because it deprives our opponents of a potent objection they like to make against us in which what George Smith called the specter of anarchy that if they can haunt you with the specter of anarchy then you'll shrink from your basic principles and admit that they have to be compromised and I don't think we need to make that admission Thank you for listening to Free Thoughts if you have any questions or comments about today's show you can find us on Twitter at Free Thoughts pod that's Free Thoughts P-O-D Free Thoughts is a project of Libertarianism.org and the Cato Institute and is produced by Evan Banks To learn more about Libertarianism visit us on the web at www.libertarianism.org