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The Structure of Liberty: Justice and the Rule of Law, by Randy E. Barnett
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In this book, legal scholar Randy Barnett elaborates and defends the fundamental premise of the Declaration of Independence: that all persons have a natural right to pursue happiness so long as they respect the equal rights of others, and that governments are only justly established to secure these rights.
Drawing upon insights from philosophy, economics, political theory, and law, Barnett explains why, when people pursue happiness while living in society with each other, they confront the pervasive social problems of knowledge, interest and power. These problems are best dealt with by ensuring the liberty of the people to pursue their own ends, but this liberty is distinguished from "license" by certain fundamental rights and procedures associated with the classical liberal conception of "justice" and "the rule of law." He then outlines the constitutional framework that is needed to put these principles into practice.
In a new Afterword to this second edition, Barnett elaborates on this thesis by responding to several important criticisms of the original work. He then explains how this "libertarian" approach is more modest than either the "social justice" theories of the left or the "legal moralism" of the right.
- Sales Rank: #382772 in Books
- Published on: 2014-02-19
- Released on: 2014-02-19
- Original language: English
- Number of items: 1
- Dimensions: 6.00" h x .90" w x 9.10" l, 1.30 pounds
- Binding: Paperback
- 400 pages
Review
Review from previous edition: "The Structure of Liberty is that rare creature, a book that delivers on most of the promises it makes. Already the book is on its way to becoming a contemporary classic, the successor in interest to Robert Nozick's Anarchy, State and Utopia as a source of ideas and arguments for the revitalization of an important intellectual tradition that has long stood at the periphery of legal and political theory." --Michigan Law Review
"This is a serious, engaging, and important work of jurisprudence and political philosophy....Comprehensive in its treatment, fair-minded in the way it deals with evidence and unfailingly rigorous in its argument" --Choice
"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" --James Lindgren, Northwestern University School of Law
"His interest in basic theory as it relates to the uses and abuses of political power makes his views on a wide range of state policy issues, from taxation to criminal law, worthy of careful attention" --Reason
About the Author
Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
Randy E. Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he directs the Georgetown Center for the Constitution and teaches constitutional law and contracts. He has been a visiting professor at Harvard Law School, the University of Pennsylvania, and Northwestern. In 2008, he was awarded a Guggenheim Fellowship in Constitutional Studies. His publications include more than one hundred articles and reviews, as well as ten books. After graduating from Northwestern University and Harvard Law School, he tried many felony cases as a prosecutor in the Cook County States' Attorney's Office in Chicago. In 2004, he argued the medical marijuana case of Gonzalez v. Raich before the U.S. Supreme Court. In 2011-12 he represented the National Federation of Independent Business in its constitutional challenge to the Affordable Care Act.
Most helpful customer reviews
10 of 10 people found the following review helpful.
Powerful and Thought-Provoking work on Justice and the Rule of Law
By Mike Mertens
Updated for the second edition.
I highly recommend Randy Barnett's The Structure of Liberty to anyone who wants to better understand the principles of justice and the rule of law. He develops and explains how they provide the structure of liberty that enables individuals to pursue their happiness in a social context. There are a lot of thought-provoking ideas throughout the book that are making me think more deeply about this topic.
The most powerful feature of the book to me is the way Barnett builds out the classical liberal conception of justice. He begins the book with a discussion of Natural Law and Natural Rights. Then he uses a "Given-If-Then" model of reasoning to set the context for what is to come:
Given: The nature of human being and the world in which they live
If: "we want a society in which persons can survive and pursue happiness, peace and prosperity"
Then: we should respect the liberal conception of justice and the rule of law
The development of this conception of justice is what is covered in the rest of the book. I found his method of developing and refining his formulation of the liberal conception of justice very powerful. He evolves the formulation as he works through the "serious and pervasive social problems of knowledge, interest and power" that justice and the rule of law must address.
There is a lot of great thinking as he works through these problems and evolves the conception of justice. There are 3 areas I want to call attention to since they are areas where I now see the need to think more about:
1.) The common law - he notes how the common law helps bridge the gap between theory and practice through an evolutionary process (this section also given me some thoughts for my job as a program manager which was a nice side benefit)
2.) The problem of enforcement abuse - I had given too little attention to this but with the recent (2013 - 2014) attention on areas where government abuse has grown, I think this area has become even more problematic than when Barnett first wrote the book
3.) Retribution versus restitution - there is a lot of material that Barnett covers here which have led me to start reconsidering what role retribution has given the problems of knowledge, interest and power - especially where those problems falsely victimize the innocent.
I highly recommend the second edition of this book. Barnett has added an afterward that covers his thoughts since the book was first published. He has a nice discussion of the social justice and legal moralist critiques and he explains why the libertarian position is far more modest and realistic. It better addresses the problems of knowledge, interest and power as a whole than the competing political theories.
Reading the second edition allowed me to continue to think a lot deeper on some very important issues regarding a free society. I can say that this is a work I will continue to revisit as it has a lot of important thinking. The methodology he uses allows someone to disagree with the author but they then need to make sure they can better address the problems of knowledge, interest and power that he details throughout the book.
As the Author notes at the end of the book: "...social theories have to be assessed comparatively. ...Criticism simply is no substitute for the presentation of a potentially-superior alternative perspective."
P.S. – Barnett also notes in the afterword to the second edition of the need for a better foundation for rights (which is outside the scope of his book). Since my original reading of Barnett’s book last summer (2013), I have read Rasmussen and Den Uyl’s work “Norms of Liberty” which addresses this question and which I highly recommend as well.
4 of 4 people found the following review helpful.
Ambitious and well-reasoned.
By Johnny & Riza
I've enjoyed Randy Barnett's other books and his blogging. Barnet is a go-to guy on the Supreme Court and Constitutional issues concerning liberty
His "The Structure of Liberty: Justice and the Rule of Law" is an ambitious book that would be enjoyed by anyone interested in liberty issues. He begins with a philosophical look at natural rights as the foundation of his structure.
"If adherence to natural rights is indeed essential for the maintenance of social life, as natural rights theorists maintain and as I shall try to explain in the balance of this book, then laws are obligatory only if they are consistent with natural rights. By this account, a command may be a "law" in the descriptive sense that it is issued by a recognized law-maker, but it is only law in the normative sense of a command that binds in conscience on the citizenry if it does not violate the background rights of persons. Thus, for human laws to be obligatory, they should not violate natural rights."
The next layer is economics: chiefly Hayek's knowledge problem and Mises's Praxeology.
"Prices are by far the most neglected form of knowledge we have. Although some economic literature stresses the importance of prices, the knowledge-disseminating function of prices is largely unknown-- or, if known , then widely ignored-- in political and legal theory."
In Barnett's view of liberty, individuals have bounded-domain jurisdiction over property. And consensual transfer, based on prices, best reflects local knowledge of property's value and the best use of the resource. Nothing earth-shattering just yet, but a majestic, rights-based explanation and defense of liberty with a consistency, clarity and comprehensive scope to rival political philosophers -- but with some hooks that are more familiar and accessible to economic and political readers.
Next, he covers the structure of Law, which was my only expectation seeing Barnett's name on the cover. Having established these rights and the best means to transfer them, how do we defend them form those with Interest and Power to suborn them.
Barnett asks how this can be done, and how respect for rights and the rule of law can survive the conflicts of Interest and Power. To my sadness, the Constitutional scholar does not choose the Constitution. The author of "Restoring the Lost Constitution" seeks a liberal order that will not someday succumb to 16th, 17th Amendments and decisions like The Slaughterhouse Cases, WIckard, Raich, and Kelo.
I have already weakened the first section by over-synopsis. I'll save you and the author a summary of his prospective solution: the "Structure of Liberty" he proposes. I'll tease that it is built on private property, criminal and civil law based on restitution and not retribution, and distributed ("polycentric") enforcement and adjudication.
This is the first truly compelling suggestion for privatized justice that I have encountered. I like Rothbard some -- and I like Hoppe a lot, but I read them and appreciate their arguments without accepting their underlying beliefs.
This is not "oh, we'll just let private business do it and it will be swell!" This is thoughtful and carefully assembled. Not an afternoon-by-the-pool read, but readable and comprehensible. The high density of ideas dictates serious contemplation.
2 of 2 people found the following review helpful.
Outstanding book.
By H. Stock
Randy Barnett writes a clearly stated argument for liberty. Barnett takes an in depth approach to the subject and make few assumptions. If liberty and justice are things that you desire then this book will help you argue the case.
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