Skepticism and Freedom: A Modern Case for Classical Liberalism

by Richard A. Epstein

With this book, Richard A. Epstein provides a spirited and systematic defense of classical liberalism against the critiques mounted against it over the past thirty years. One of the most distinguished and provocative legal scholars writing today, Epstein here explains his controversial ideas in what will quickly come to be considered one of his cornerstone works.

He begins by laying out his own vision of the key principles of classical respect for the autonomy of the individual, a strong system of private property rights, the voluntary exchange of labor and possessions, and prohibitions against force or fraud. Nonetheless, he not only recognizes but insists that state coercion is crucial to safeguarding these principles of private ordering and supplying the social infrastructure on which they depend. Within this framework, Epstein then shows why limited government is much to be preferred over the modern interventionist welfare state.

Many of the modern attacks on the classical liberal system seek to undermine the moral, conceptual, cognitive, and psychological foundations on which it rests. Epstein rises to this challenge by carefully rebutting each of these objections in turn. For instance, Epstein demonstrates how our inability to judge the preferences of others means we should respect their liberty of choice regarding their own lives. And he points out the flaws in behavioral economic arguments which, overlooking strong evolutionary pressures, claim that individual preferences are unstable and that people are unable to adopt rational means to achieve their own ends. Freedom, Epstein ultimately shows, depends upon a skepticism that rightly shuns making judgments about what is best for individuals, but that also avoids the relativistic trap that all judgments about our political institutions have equal worth.

A brilliant defense of classical liberalism, Skepticism and Freedom will rightly be seen as an intellectual landmark.

Genres: Philosophy, Law, Politics

320 pages, Paperback

First published June 1, 2003

About the author

Richard A. Epstein is the James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at The University of Chicago Law School.

Epstein started his legal career at the University of Southern California, where he taught from 1968 to 1972. He served as Interim Dean from February to June, 2001.

He received an LLD, hc, from the University of Ghent, 2003. He has been a member of the American Academy of Arts and Sciences since 1985 and a Senior Fellow of the Center for Clinical Medical Ethics at the University of Chicago Medical School, also since 1983. He served as editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991 to 2001.

His books include The Case Against the Employee Free Choice Act (Hoover 2009); Supreme Neglect Antitrust Decrees in Theory and Practice: Why Less Is More (AEI 2007); Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation (Yale University Press 2006); How Progressives Rewrote the Constitution (Cato 2006). Cases and Materials on Torts (Aspen Law & Business; 8th ed. 2004); Skepticism and Freedom: A Modern Case for Classical Liberalism (University of Chicago 2003): Cases and Materials on Torts (Aspen Law & Business; 7th ed. 2000); Torts (Aspen Law & Business 1999); Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Books 1998): Mortal Peril: Our Inalienable Rights to Health Care (Addison-Wesley 1997); Simple Rules for a Complex World (Harvard 1995); Bargaining with the State (Princeton, 1993); Forbidden Grounds: The Case against Employment Discrimination Laws (Harvard 1992); Takings: Private Property and the Power of Eminent Domain (Harvard 1985); and Modern Products Liability Law (Greenwood Press 1980). He has written numerous articles on a wide range of legal and interdisciplinary subjects.

He has taught courses in civil procedure, communications, constitutional law, contracts, corporations, criminal law, health law and policy, legal history, labor law, property, real estate development and finance, jurisprudence, labor law; land use planning, patents, individual, estate and corporate taxation, Roman Law; torts, and workers' compensation.

Reviews

[Satkirath Singh · Rating 4 out of 5]

A book that summarises classical liberalism for the 21st century. Epstein confronts many of the contemporary critiques of classical liberalism across economics and moral theory, and does so with a consistent underlying philosophy. What prevents this book from gaining a fifth star is its potential inaccessibility to readers unfamiliar with Epstein's unique outlook. I personally (hopefully?) understood his more abstract arguments having already been familiarised with his other writings which may not be the case for other readers. Regardless, this is certainly worth a read for anyone wishing to get up to speed with political philosophy in the 21 century.

[Lance Cahill · Rating 3 out of 5]

An interesting book, but I didn't necessarily think Epstein presented the strongest case for the opposing viewpoint. I,e. is forcing employers to set up default savings plan for employees consistent with his classical liberal view given the arguments of Sunstein-Thaler and other framing devices often implemented by means other than private contract,

[Paul Sand · Rating 4 out of 5]

[Imported automatically from my blog. Some formatting there may not have translated here.]

Amazon kindly informs me that I bought this book on September 22, 2004, over nine years ago. That's how far behind I can get on my reading. (And I'm pretty sure there are older books further down the pile.)

Fortunately, the book's arguments are timeless. That's what I keep telling myself anyway

Richard Epstein has been my nerdy hero especially since then-Senator Joe Biden held up his book Takings during the confirmation hearings for Clarence Thomas as an example of what no decent human being, let alone a prospective Supreme Court Justice, could subscribe to. Epstein's thoughtcrime in that book was to object to government's unlimited eminent domain power.

Epstein didn't, mind you, object to eminent domain totally. In fact, he held that some sort of eminent domain power was necessary for the proper functioning of government. But he argued that many government activities should be regarded as "takings" of private property, and therefore meet the requirements of the Fifth Amendment: that they be for "public use", and that there must be "just compensation." And to Biden, the notion that the state could not do whatever struck its fancy in the economic sphere was complete heresy.

Since then, Epstein has written a series of books defending "classical liberalism", (he has a new one[image error] coming out next month, I see). As befits a University of Chicago Law Professor, his arguments tend to discuss things from a legal perspective, as opposed to a philosophical or economic one. He contends that the law (properly understood) contains features of an "emergent order", where centuries of messy practice and evolution have assembled into a coherent working system. Like the parallel economic system, what results isn't flawless. It's just far superior than what could have resulted from the top-down design fantasies of utopians.

In this book, Epstein first lays out his views of the classical liberal vision: strong respect for individual autonomy and responsibility, and private property rights. The state's role is to provide physical and legal infrastructure (backed up by, yes, eminent domain when called for) and protection of the citizenry against aggression and monopoly. This is a somewhat more expansive role for the state than envisioned by libertarians that lean toward anarchy, but Epstein's arguments are strong.

In the remainder of the book, Epstein lays out his rebuttals to a various modern challenges to classical liberalism: attacks on its moral foundations and its assumptions about human nature. And, as far as I can tell, he does a fine job there too.

Because I have to be honest: the book is very heavy intellectual lifting. Epstein is a vigorous participant in high-level intellectual debates that have been going on for decades, some of them centuries. This book presumes an everyday familiarity with the topics that many more casual readers (specifically: me) lack. Not saying I couldn't get up to speed by reading me some Amartya Sen, Joseph Raz, etc. And then pursuing a law degree. And then rereading relevant sections of this book. But that's not likely to happen.

Arguably, Epstein could have written more accessibly. Less legal-brief prose, more like Jonah Goldberg or Kevin G. Williamson. He's no Milton Friedman either.

Never mind that, though. Epstein's still one of my heroes, even if I can't understand him as well as I would like.

[Jacob O'connor · Rating 3 out of 5]

I finished this book a day before the Republican National Convention. I've never felt more like an alien in my own country. I'm a long time conservative, but the Republicans have passed me by. They’ve increasingly departed the values that attracted me: small government, individual liberty, moral clarity. Consequently, I've become more and more attracted to the Libertarian party. That comes with it's own problems. I believe in a reasonable role for government; defense, infrastructure, police and fire, etc, and I wonder which "system" best describes me. With this in view, I picked up Epstien's "Skepticism and Freedom:
A Modern Case for Classical Liberalism". Don't fall for the same trick I did. This is indeed a "case". Epstein defends in the most academic vernacular all the minutest components a political system, be it freedom, preference, or morality. These are meaty arguments and tough to follow. The end result is, I didn't come away with the primer I wanted. I'll look for something a bit more basic, even though Epstien's book is worth the effort.

Notes:

(1) Self interest in a world of scarcity (9)

(2) Social systems breakdown because free riders. At least some public institutions are required (27)

(3) Property rights and the preservation of the commons. (40)

(4) Win-lose transactions should only be considered when all win-win possibilities have been exhausted. Comes to bear when contemplating wealth redistribution. (59)

(5) You can't redistribute what you don't produce (64)

(6) Fascinating discussion on "over the barrell" moral scenarios (100)

(7) Strong government within a limited compass. (260)

(8) Limiting government to the tasks it does well (260)

(9) Any government is only as good as the people who run it. Per James Madison, the best governments can weather the most bad governors.

[Nat · Rating 5 out of 5]

Prof. Epstein at his best.