Libertarianism is sometimes portrayed as radical and even extreme. In this Afterword to a symposium on "Libertarianism and the Law" in the Chapman Law Review, I explain why, though it may be radical, libertarianism is far from extreme in comparison with its principal alternatives: the social justice of the Left or legal moralism of the Right. Social justice posits that everyone should get a certain amount of stuff; legal moralism posits that everyone should act in a certain way. But because there is no consensus about how much stuff each person should have or how exactly everyone should act, both of these comprehensive approaches are recipes for societal conflict. And the legal institutions that are necessary to implement each vision must be highly intrusive and coercive. In contrast, libertarianism is far more modest: it stipulates only that individuals may do what they please with what is theirs, requiring a legal system merely to define the proper jurisdiction of each person over their rightfully acquired property. I explain how the basic insight of libertarianism is rooted in the spirit of toleration that was the classical liberal solution to the socially destructive religious wars. Like Westphalian political "sovereigns" who are to leave each other in peace and not to interfere with each other's domestic affairs, classical liberalism posited the sovereignty of individuals to pursue the good life peacefully within their own jurisdictions, free from outside interference, provided they do not infringe upon the like jurisdictions of other sovereign individuals. I conclude by explaining how libertarianism contributes to the private law that defines the contours of these individual jurisdictions, and the public law that is supposed to confine government to its proper function of protecting the rights of persons better than they can protect themselves. Although many would prefer their own preferred visions of social justice or legal moralism (or both) to be imposed on everyone else, libertarianism represents an appealing "second best" or "middle way" alternative to having someone else's "wrong" vision of social justice or of morality imposed upon them.
16 Chapman L. Rev. 349-365 (2013)
Scholarly Commons Citation
Barnett, Randy E., "Afterword: The Libertarian Middle Way" (2013). Georgetown Law Faculty Publications and Other Works. Paper 1179.