February 4th, 2023
Review: The Structure of Liberty
Every serious scholar of law and liberty, it is apparent, should study The Structure of Liberty's original synthesis of classical liberal scholarship.
The Structure of Liberty is one of the most carefully constructed and well-argued defenses of the classical liberal legal and political order. Barnett’s thinking is deeply rooted in the natural law tradition but he combines this tradition, rather adroitly (if not wholly convincingly), with consequentialist considerations inspired by neoclassical and Austrian economics. The influence of the latter, and F.A. Hayek in particular, is the most apparent in the book’s focus on the question of knowledge (and ignorance) as one of the main drivers for the liberal legal project. I really appreciated Barnett’s efforts to ground a theory of law, in the first place, on epistemic grounds. In this, I think he succeeds, despite the cursory nature of some of his discussions on epistemology. The book passes over philosophical fundamentals rather quickly, but this is not a big problem, since framing the legal order is a matter of the application and extension of a set of basic principles that can (and have to) be taken for granted in order for the project to get off the ground at all. Perhaps the most important of his proposed set of basic (pretty plausible but not incontrovertible) axioms is a secularized and updated version of the ancient natural law claim that human behavior and the social world are governed by causal powers (natural laws) that underlie, shape, and constrain our ability to design our institutions (human laws) to achieve various purposes. He goes on to discuss knowledge, power, and interest as the three interlinked challenges (or constraints) that any robust legal-political order must face and overcome. He claims that the classical liberal order does the best job at addressing these, although never perfectly, and always in need of interpretation and adaptation according to local and changing circumstances. Regarding adaptability, he highlights the crucial role played, in this scheme, by legal and judicial processes in facilitating (one hopes) the fair adjudication of the claims of knowledge, power, and interest. His synthesis of the common law and natural law traditions with the insights of Austrian and neoclassical economics and original legal theoretical argumentation feels refreshing.
Barnett has constructed, here, an impressive and commanding edifice that deserves to be taken seriously. Despite the fact that it has some holes in its argumentation (e.g., his controversial pluralistic claims about the supposed normative compatibility between natural law and consequentialism), and despite the fact that not all the details are equally fleshed out (e.g. the room for democratic action), there is aesthetic beauty in the way it all hangs together. And beyond beauty, the Platonic unity of the beautiful, the good, and the true (to the extent that there is such a thing) suggests that the edifice might, by the same token, be (partially) truth-tracking. As a consequentialist philosopher, although I am very skeptical towards the natural law tradition, I found Barnett’s account rather exhilarating, analytical, and rigorous (although not always philosophically satisfactory or convincing). In an age of endless repetition, it is always pleasant to find authors who, while building on the old, produce something new. Every serious scholar of law and liberty, it is apparent, should study this original synthesis of classical liberal scholarship.
The views expressed on austriancenter.com are not necessarily those of the Austrian Economics Center.
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