The Structure of Liberty: Justice and the Rule of Law
How Should We Address the Fundamental Problems of Knowledge, Interest, and Power?
SEPTEMBER 01, 1999 by BRUCE BENSON
In The Structure of Liberty, Boston University law professor Randy Barnett identifies the fundamental problems that must be recognized in order to create a proper foundation for society: the problems of knowledge, interest, and power. Those problems arise because both physical resources and human abilities are scarce, because altruism is limited, and because humans are vulnerable. They mean that individual conduct must be constrained in some ways or else society will collapse.
But just as “good” buildings require different floor plans depending on their purpose, the structure of a “good” society also depends on the objectives of the society’s occupants. Barnett attempts to describe the structure of a society that will allow “each person to pursue [his subjectively determined perception of] happiness, peace, and prosperity while acting in close proximity to others.” Such a society requires justice and the rule of law, as the subtitle of the book suggests, so Barnett focuses on the necessary components of the structure of liberty in the face of the problems of knowledge, interest, and power. The result is an insightful, often brilliant presentation that deserves serious attention from those of us who share this vision of the good society.
Barnett is not attempting here to convince modern liberals or modern conservatives to become classical liberals or libertarians. Instead, he is writing to classical liberals and libertarians who already share his vision in an effort to show them what the structure of liberty requires. Convincing people that particular laws or policies are undesirable will have little long-term benefit if we do not have institutions of governance that sustain better rules and policies. Barnett argues that those institutions must be structured to handle the problems of knowledge, interest, and power.
Other political philosophers, of course, have wrestled with the problem of structuring liberty, but most who have preceded Barnett have not focused adequately on power. By bringing all three problems into the analysis Barnett is able to offer new insights regarding the kinds of institutions that are likely to produce justice and the rule of law in support of liberty. He questions some widely accepted principles of governance long cherished by classical liberals and proposes replacements.
Perhaps the best examples of this are in chapters 12 and 13, where Barnett turns to the problem of enforcement abuse and the nature of effective constitutional restraints on power. He challenges the argument by John Locke and other classical liberals who contend that a coercive monopoly of power is necessary to handle the problem of enforcement abuse. The “single power principle” has led classical liberals to focus on designing constitutional rules to shackle the monopoly in various ways. Barnett explains that the single power principle is itself a primary source of abuse and that the rule of law is not likely to be maintained even with such constraints as periodic elections and checks and balances.
Furthermore, the single power principle is inconsistent with other liberal tenets. For instance, as Barnett explains, “Some think that law enforcement and adjudication are so important that we must make an exception to the background right of freedom of contract and permit a coercive monopoly to provide such services. . . . [But] the more vital a good or service is, the more dangerous it is to let it be produced by a coercive monopoly.”
Barnett also points out that the reality of Western legal tradition is one of polycentric law, not monopolized law, and the competition between legal jurisdictions is actually the source of much of what is good about our modern legal system (many aspects of which are being undermined by increasing centralization of law). The rule of law, he argues, actually requires a polycentric constitutional order.
A brief review cannot possibly do justice to Barnett’s analysis. The two chapters devoted to the importance of the rule of law are truly outstanding, but I would not hesitate to say the same about many other of his arguments. This book makes an important contribution toward a more complete understanding of the structure that must underlie a society in which individuals can live in peace and prosperity. I strongly recommend The Structure of Liberty to anyone who seeks such a society.
Bruce Benson is DeVoe Moore Distinguished Research Professor at Florida State University.