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Pragmatic Liberalism Versus Classical Liberalism (Reviewing Richard A University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2004 Pragmatic Liberalism versus Classical Liberalism (reviewing Richard A. Epstein, Skepticism and Freedom: A Modern Case for Classical Liberalism (2003)) Richard A. Posner Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Richard A. Posner, "Pragmatic Liberalism versus Classical Liberalism (reviewing Richard A. Epstein, Skepticism and Freedom: A Modern Case for Classical Liberalism (2003))," 71 University of Chicago Law Review 659 (2004). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Pragmatic Liberalism versus Classical Liberalism RichardA. Posnert Skepticism and Freedom: A Modern Case for ClassicalLiberalism, Richard A. Epstein. Chicago, 2003. Pp v, 311. For three decades Richard Epstein has been searching for foun- dations for his legal and political views-a set of views that he calls "classical liberalism" and others might call laissez-faire, though I shall argue that a more precise description would be Hayekian liberalism. He has not been content to defend his views by pointing out their ad- vantages and disadvantages and asking the reader to decide whether he believes the former outweigh the latter; that would be the prag- matic approach- and it is mostly what he does, in his voluminous writ- ings on issues of law and public policy. But he wants more than a pragmatic justification; he wants his views to have a philosophical grounding and heft. He wants to be able to say that his views are right or true in some strong sense and not merely that they are reasonable and attractive, worth trying, etc. His quest has culminated in his new book Skepticism and Freedom, one goal of which is to refute the kind of thinking-which I call pragmatism but he calls moral skepticism and moral relativism-that regards a quest for foundations for legal, moral, or political beliefs as futile: at once quixotic and pointless. Pragmatists regard the quest so because they believe that reasoning to (or from) foundations is convincing only to the already convinced and to others is just rhetorical posturing, and also that it is superfluous; pragmatic arguments for the sort of policies that Epstein advocates are compelling, at least in the present political and intellectual climate of the United States, and will do the work that Epstein needs in order to defend his policy preferences convincingly. It is not as if he were trying to persuade the Iranian clerisy to substitute The Wealth of Na- tions for the Koran. My policy preferences are similar though not identical to Ep- stein's. I describe myself as a classical liberal too, though more in the vein of John Stuart Mill than of Hayek. But I will give him his term and instead defend, as against his notion of a philosophically t Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, The University of Chicago Law School. The University of Chicago Law Review [71:659 grounded classical liberalism, my notion of pragmatic liberalism.' But I shall defend it mostly negatively, by pointing out the limitations of Epstein's approach. Epstein has been generally consistent in the array of specific poli- cies, legal and otherwise, that he defends. The consistency has both a negative and a positive side. The negative is an extreme hostility to- ward government regulation (greater than my own, certainly), amounting to a root-and-branch rejection of virtually all the distinc- tive features of twentieth-century liberalism ("modern" or "welfare" liberalism)--the regulation of minimum wages and maximum hours, the legal protection of unionization, the regulation of job safety, anti- discrimination laws, progressive taxation, social security and Medicare, poor relief (and thus Medicaid, earned-income credits, and welfare), the tort of medical malpractice, and much else: in other words, any form of regulation that interferes with freedom of contract,' unless the performance of a contract causes palpable harm to nonconsenting third parties unable to protect themselves at reasonable cost, as in cer- tain accident, pollution, and monopoly settings.' For Epstein, any fur- ther interference with contractual relations is social engineering, which not only reduces freedom but also is premised on an exagger- ated belief in the power of conscious, articulate reasoning, in such forms as cost-benefit analysis, to solve social problems. The positive side of Epstein's political and legal philosophy is the faith that he shares with Hayek (and which is the mirror image of the skepticism about the power and reach of conscious reasoning that he also shares with Hayek) in custom as the product of evolution-honed experience, reliable though often inarticulate.4 He finds it a great comfort if he can trace a legal rule that he likes to Roman law. Like Hayek he sees the function of courts as being primarily to enforce custom rather than to produce social betterment He is actually to the right of Hayek I See Richard A. Posner, Law, Pragmatism, and Democracy (Harvard 2003). The coinci- dence of our two books having been published within a month of each other is the occasion for this debate. 2 Making medical malpractice a tort, for example, has the effect of preventing doctor and patient from fixing by contract the level of care in the treatment of the patient. 3 Though Epstein seems ambivalent about whether there should be antitrust laws as such, or whether it is sufficient that courts not enforce cartel agreements, which was the common law approach. According to Epstein, "error costs are high even for the best approach" (p 131). 4 "Often it is better to presume the soundness of instincts that survive, even if one does not quite understand why they flourish" (p 5). 5 Compare, for example, Friedrich A. Hayek, 1 Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy: Rules and Order 87 (Chi- cago 1973) ("The task of the judge will be to tell [litigants] what ought to have guided their ex- pectations ... because this was the established custom which they ought to have known."), with Richard A. Epstein, International News Service v. Associated Press: Custom and Law as Sources of Property Rights in News, 78 Va L Rev 85,85 (1992): 2004] PragmaticLiberalism versus Classical Liberalism (p 118),' though a few steps to the left of "anarcho-capitalists," such as David Friedman7 (p 5). With so definite, so specific, and so Utopian a set of views-no existing society approximates Epstein's concept of the just society or is likely to do so in the foreseeable future-Epstein, again like Hayek, is inevitably only weakly supportive of democracy; more precisely, he is supportive of democracy in only a very limited sphere. Democracy can no more be relied upon to produce the minimum state of Ep- stein's imagination than to produce the slightly less minimal state en- visioned by Hayek. Hayek's proposed solution to the inability of de- mocracy to produce the minimal state was the bizarre one of creating an upper house of the legislature composed of persons between the ages of forty and fifty-five who would serve a nonrenewable fifteen- year term, the length and the nonrenewability assuring these Nestors' independence from direct or indirect control by the electorate." Ep- stein's proposed solution, the more natural one in the American set- ting, is to persuade the Supreme Court to make freedom of contract the supreme constitutional principle (pp 69-73). Like Hayek, Epstein believes that legislatures have very little business regulating private conduct. Their proper business is financing the government through either flat or proportional taxation, and the proper scope of the de- mocratic principle is the selection of officials not to make policy (ex- cept foreign policy) but to execute the policies dictated by Epsteinian or Hayekian liberalism. Even the officials' control over tax and spend- ing, the traditional legislative prerogatives, is tightly constrained, for they are not to impose progressive taxes or redistribute wealth from rich to poor. Liberalism in Epstein's construal of the term refers not to self-government but to freedom from government regulation. It is democratic liberalism without much democracy. For him, self- government means government of the self by the individual free from interference by public officials. [The state's] chief function is to discover and reflect accurately what the community has customarily regarded as binding social rules and then to enforce those rules in specific con- troversies. The image in this context is not of courts-or even legislatures-that "make" the law, but rather of courts and legislatures that "find" and respect the law, which they then re- fine by incremental changes and marginal decisions. 6 Epstein has criticized Hayek for what he calls the latter's "unwise concessions to the be- nevolent use of state power." Richard A. Epstein, Hayekian Socialism, 58 Md L Rev 271, 273 (1999). These consist primarily of support of welfare rights (minimum income). See id at 291-95. 7 See David Friedman, The Machinery of Freedom xi (Arlington House 2d ed 1978) ("1 am an Adam Smith liberal, or, in contemporary American terminology, a Goldwater conserva- tive. Only I carry my devotion to laissez faire further than Goldwater does. Sometimes I call my- self a Goldwater anarchist."). 8 See Friedrich A. Hayek, Economic Freedom 395 (Basil Blackwell 1991). The University of Chicago Law Review [71:659 In his early writings, Epstein sought a foundation for his political philosophy in the concept of causation.9 He argued that responsibility followed (did follow and should follow) causation.
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