I have long been impressed with the legal thought of Richard Epstein. Lately I’ve been reading from Simple Rules for a Complex World (Harvard, 1995). I’m struck that the simple rules he comes up with are something that would have a broad appeal to libertarians of many stripes. The rules are:
- Self-ownership and autonomy
- First possession
- Voluntary exchange
- Protection against aggression
- Limited privilege for cases of necessity
- Taking of property for public use on payment of just compensation
Wouldn’t most libertarians love moving to this type of a minimal state compared to where we are currently in the Western world?
Of course, many can’t stand his type of reasoning, though I love it. He pursues consequentialist logic with a vengeance. Thus he ends up moving “backwards” from “social consequences” to these rules (what he calls a “reverse engineering”) rather than forward from a starting position founded in, say, Locke’s state of nature. By doing so he avoids the “clash of moral absolutes that has so dominated philosophical discourse in this area.”
One of the most appealing features of his analysis is that the limits to his rules are built right in. As he says, “precisely because the justification for the rule is empirical, it is possible to state something of a the limits of its desirability, given the familiar trade-off between administrative simplicity and desirable incentives.”
So what we end up with is strong protections of native rights as well as a system of building in the limits to rules that all well-functioning societies must have. In his chapter on property (from which I’ve quoted above), his approach is also flexible enough to both justify private property and to argue why common property needs to exist and must be governed by slightly more complex rules. Brilliant.
He gets my vote for philosopher king.