For those neophytes who have never heard of Spooner, let me simply quote Murray Rothbard’s description from the September 1974 Libertarian Forum: “[H]e was undoubtedly the only constitutional lawyer in history to evolve into an individualist anarchist,” and “of all the host of Lockean natural rights theorists, Lysander Spooner was the only one to push the theory to its logical—and infinitely radical—conclusion: individualist anarchism.”

The table of contents of Steve Shone’s book outlines the major areas of political philosophy and economics about which Spooner wrote: Natural Law, Private Mail, and Property; Poverty and Economics; Political Obligation; Jury Nullification; Slavery; and Religion, Morality, and the Legal Profession.

Spooner’s concern with natural law and justice manifested itself in his lifelong arguments against slavery; government monopolization of money, credit, and the post office; government licensure of lawyers and restrictions on juries; taxation; seizure and confiscation of private property; and government interference with the natural laws of intellectual property.

Just one example will suffice to demonstrate Spooner’s unique interpretation of the U.S. Constitution and the natural right of human beings to use their property peacefully as they see fit. Before Spooner’s own private postal delivery company was harassed and put out of business by federal authorities in 1844, he published “The Unconstitutionality of the Laws of Congress Prohibiting Private Mails.” In it he noted that the Constitution did not grant Congress a sole and exclusive right to establish post offices and post roads. In other words, the power given to Congress did not allow it “to forbid similar establishments by the States or the people.”

Furthermore, Spooner noted that no branch of the government had ever questioned the right of American citizens to mint their own gold coins so long as they did not attempt to imitate current coins of the United States. Spooner argued it was just as much a common-law right to deliver private mail entrusted to one’s care as it was a right “to weigh and assay pieces of gold and silver, mark upon them their weight and fineness, and sell them for whatever they bring, in competition with the coin of the United States.”

Although the author bills his work as “the first full-length work devoted to the ideas of Lysander Spooner,” Spooner’s writings are so extensive and comprehensive that some of his most important commentaries are not mentioned. One, reminiscent of Spooner’s famous No Treason series, is the appendix to his 1852 book, Trial By Jury. This short, seven-paragraph addendum epitomizes Spooner’s outlook on the nature of government, even before the citizens of the southern states were beaten into submission by federal armies and navies. Spooner wrote:

It was a principle of the Common Law . . . that no man can be taxed without his personal consent. The Common Law knew nothing of that system . . . of assuming a man’s own consent to be taxed, because some pretended representative, whom he never authorized to act for him, has taken it upon himself to consent that he may be taxed. . . .

. . . Taxation without consent is as plainly robbery, when enforced against one man, as when enforced against millions; . . . Taking a man’s money without his consent, is . . . as much robbery, when it is done by millions of men, acting in concert, and calling themselves a government, as when it is done by a single individual, acting on his own responsibility, and calling himself a highwayman. Neither the numbers engaged in the act, nor the different characters they assume as cover for the act, alter the nature of the act itself. . . .

. . . The government’s pretence of protecting him, as an equivalent for the taxation, affords no justification. It is for himself to decide whether he desires such protection as the government offers him. If he do not desire it, or do not bargain for it, the government has no more right than any other insurance company to impose it upon him, or make him pay for it.

For anyone interested in the antecedents of contemporary libertarianism and individualism, Lysander Spooner: American Anarchist is a good place to start. Be prepared to meet a man whose ideas are radical.

The judge called a recess and the prosecutor worked out a plea deal, which read, “Public opinion, as revealed by the reaction of a substantial portion of the members of the jury . . . is not supportive of the state’s marijuana law and appeared to prevent any conviction from being obtained. . . .”

Technically jury nullification did not occur because no jury had been seated. Nullification occurs when a jury in a criminal case either acquits or refuses to convict a defendant despite the letter of the law or the weight of evidence. In effect the jury passes judgment on the justice of the law and refuses to facilitate what it deems to be unjust.

Nullification is often held up as a populist defense against oppressive or corrupt law, but many questions surround the legal procedure.

Natural Right, Necessary Legal Procedure?

The most basic question: Is jury nullification—or, more broadly, trial by jury—a natural right or merely a legal procedure to be judged on its utility in preserving justice? If trial by jury is a natural right, akin to freedom of speech, then no other consideration should interfere with it. If it is a strategy, then other considerations become powerful.

Trial by jury has acquired the air of a natural right for several reasons.

The proceeding has been enshrined in some of Western civilization’s most venerated statements of individual rights. In Trial by Jury, the nineteenth-century American legal scholar Lysander Spooner translated Article 39 of Magna Carta (1215) as protecting all free men from the abridgment of liberty except “by the lawful judgment of his peers, and or by the law of the land.”

Among the “repeated injuries and usurpations” of King George listed in the American Declaration of Independence was “depriving us [colonials] . . . of the benefits of Trial by Jury.” The Sixth Amendment to the U.S. Constitution opens, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . . ”

In practice, trial by jury has sometimes served as a clear front-line defense against oppressive laws. Jury nullification was explicitly embedded into British common law in 1670, when an English jury refused to convict William Penn for preaching Quakerism; the jurors were imprisoned. In ruling on their imprisonment the English high court stated that juries must be able to reach their own decisions without fear of punishment. In 1735 jury nullification was affirmed in colonial America when jurors refused to convict publisher John Peter Zenger for printing criticisms of the governor of New York.

Moreover, prominent nineteenth-century libertarians viewed trial by jury as an indispensable weapon against injustice. The publisher Benjamin Tucker declared, “The truth is that jury service is of much higher importance than the right of suffrage.”

But others argued that trial by jury was neither a right nor a trustworthy service to liberty.

Certainly it is difficult to view the act of passing legally binding judgment on others or demanding others to pass such judgment on you as a direct right based on self-ownership. For one thing, if the procedure is a right, then others have a duty to provide it for you; in other words it would be an entitlement or positive right, not a natural or negative one. Instead advocates like Spooner and Tucker considered trial by jury to be a delegated right. Since an individual can properly weigh evidence and facts for himself—that is, can try his own case—he could properly delegate that right to others who were willing to assume it.

But the delegation of rights could not be presumed. Spooner wrote of the omnipresent need for explicit delegation of any right: “No one’s consent could be presumed against him, without his actual consent being given. . . . And to make it binding upon any one, his signature, or other positive evidence of consent, was . . . necessary.”

How, then, could a jury claim jurisdiction over a man who refused to delegate his right? Certain laws or societal conditions were so obviously beneficial that Spooner assumed everyone would agree to them. Nevertheless if some individuals objected to trial by jury, perhaps preferring a panel of experts, then “they must . . . form a separate association for that purpose.”

In short, even its staunchest advocates viewed trial by jury as neither a natural right nor an automatically delegated one. It was an active preference.

Is Trial by Jury Good for Liberty?

A key question for any strategy is whether it achieves its intended goal. With trial by jury or nullification the goal is to protect individuals against unjust law. Many critiques of its effectiveness are utilitarian and address how best to structure a jury. For example emphasis is placed on the need for a randomly chosen jury rather than a selected or screened one that can be sculpted by the State.

Other critiques are more fundamental. For example juries can easily achieve the opposite of their intended goal; they can further injustice by refusing to convict those who are guilty of violating just law.

Consider one historical type of jury nullification. In the early and mid-twentieth century, all-white juries in the South notoriously refused to convict whites who attacked or murdered blacks. The two early trials of Ku Klux Klan member Byron De La Beckwith for the 1963 murder of black civil rights activist Medgar Evers are shameful examples. Only in 1994, when the political climate had dramatically changed, was Beckwith convicted in a third trial.

Jury nullification is also cited as a factor in the acquittal of police officers who use excessive force. Even when the violence is videotaped, juries are flagrantly reluctant to apply the law to on-duty officers as they would apply it to the average citizen. In short whether a jury likes a defendant can easily determine a verdict.

Nevertheless it is often claimed that nullification results in justice more often than not. In his essay “The Jury: Defender or Oppressor,” contemporary libertarian Michael E. Coughlin described how effective jury nullification could be: “During the 19th century in England there were some 230 capital crimes, that is crimes which would result in capital punishment for the convicted. Because juries continually refused to convict many of the people charged with capital crimes, believing the punishment was far out of proportion to the crime itself, Parliament eventually was forced to reduce the number of capital crimes in England.”

Unfortunately, no similar data on the rate of injustice from nullification seems to exist. The nineteenth-century libertarian Stephen Byington argued, however, that prejudice need not be widespread for it to disastrously impact the jury system. “If only ten per cent of the people were of this sort [unfair], more than sixty-four per cent of the juries would include one or more of these men to prevent a conviction.”

In short, jury nullification can occur for reasons good or ill, from ingrained justice or from inbred prejudice. Just laws may be as vulnerable to nullification as oppressive ones.

A Cost-Benefit Analysis

As a strategy trial by jury or nullification has advantages; for example, it creates no law. Moreover, it can counter the corruption of individuals. Spooner argued that jury power was required precisely because “justices are untrustworthy . . . exposed to bribes, are fond of authority, and are also the dependent and subservient creatures of the legislature.”

The strategy also has disadvantages. Consider one: The doctrine of the rule of law claims no one is above the law, which should be well-defined and stable rather than arbitrary. Thus the average person is protected from the shifting will of an elite and able to act with some degree of certainty about the future. But if one purpose of law is to provide a predictable society, jury nullification introduces a large element of uncertainty. To the extent laws are just and evenly applied, there would seem to be tension between nullification and a proper rule of law.

Trial by jury and jury nullification are championed as a grassroots strategy for freedom by some and decried as a form of “thug tyranny,” or majority rule, by others. Clearly, it can function as either. History demonstrates that juries can facilitate injustice.

Individuals are responsible only for their own actions, not for the misdeeds of others. But whenever possible, moral preference should be given to strategies like nonviolent resistance or education that do not carry the likelihood of harming innocent others. Not all strategies are equal; trial by jury may well be less equal than others.

Nevertheless, it is difficult to hold back applause at the mutiny in Montana, which demonstrated how the good will and common sense of a handful of fair people can defeat an unjust law.

China can be proud of the rapid economic progress it has made since 1978, when it was still a centrally planned economy with little foreign trade. Today, as the world’s second-largest economy, the People’s Republic (PRC) has gained wealth but not freedom. The Chinese people have a vastly wider range of economic and social opportunities than under the dictatorship of Mao Zedong, but their basic human rights continue to be denied by a ruling party determined to maintain its monopoly on power.

As head of the Chinese Communist Party (CCP), Hu has paid lip service to “putting the people first,” but there has been little progress in liberalizing the political regime. The reality is that his idea of a “harmonious society” is one directed by the ruling elite, in which order emerges from the top down, not spontaneously under a constitution of liberty.

One of the CCP’s long-held tenets is “to seek truth from facts.” The most glaring fact is not the inequality of wealth, but the inequality of power that strips the Chinese people of their fundamental rights. Putting the people first means limiting government power and safeguarding rights to life, liberty, and property.

The great Chinese liberal Lao-Tzu understood the importance of freedom and limited government. For him and other Taoists, harmony cannot be forced; it must be natural. In the Laozi, also known as the Tao Te Ching, we read: “The more restrictions and prohibitions there are in the world, the poorer the people will be.” Denying individuals the liberty to exchange ideas, to criticize the government and party, and to associate freely without the fear of repression makes people poorer by restricting the alternatives open to them.

In 2004 the National People’s Congress (NPC), China’s rubber-stamp parliament, amended the PRC Constitution to better protect the private sector and for the first time added the words “human rights” to the document. Article 33, section 3, reads, “The state respects and protects human rights.” Such language encouraged Chinese liberals to test the waters, only to find that reality did not match the rhetoric.

The drafting of Charter 08, a manifesto for fundamental human rights, earned Liu Xiaobo the 2010 Nobel Peace Prize, the first awarded to a Chinese citizen. It also earned him 11 years in prison. The empty chair at the Nobel ceremony was yet one more iconic image of the individual versus the State. Before his sentencing in 2009 Liu stood before the court and declared, “To block freedom of speech is to trample on human rights, to strangle humanity, and to suppress the truth.”

Like others before him, Liu was accused of “incitement to subvert state power.” Yet the Chinese people have always believed that when government acts unjustly it loses the Mandate of Heaven. Charter 08 recognizes that “China has many laws but no rule of law.” The charter, initially signed by 303 liberals, now has more than 10,000 signatories—all of whom recognize that people everywhere have the rights “to freedom, to property, and to the pursuit of happiness.”

Charter 08 and Preexisting Rights

Charter 08 reveals an acute understanding of the case for limited government and the principle that the legitimate function of the State is to protect preexisting rights to life, liberty, and property, not to deny those rights. Civil society requires freedom. To achieve that freedom Charter 08 advocates a constitutional democracy with separation of powers, an independent judiciary, and a bill of rights. Freedom of expression, of religion, of association, and the protection of private property are all enshrined in the document. The hope of the Chinese framers is that Charter 08 will “bring to reality the goals and ideals that our people have incessantly been seeking for more than a hundred years, and . . . bring a brilliant new chapter to Chinese civilization.”

The official reaction to Charter 08 and to Liu’s Nobel Peace Prize was predictable: The Chinese government launched a storm of propaganda in support of the status quo. The mouthpiece of the CCP, the People’s Daily, wrote in October 2010, “By rumor-mongering and libeling, the charter denies the people’s democratic dictatorship, socialism, and the unitary state structure stipulated in the Chinese Constitution. The charter also entices people to join it, with the intent to alter the political system and overturn the government. Liu’s activities have crossed the line of freedom of speech into crime.”

Top-Down Order and Human Happiness

Yet as Premier Wen Jiabao noted last August in a speech in Shenzhen, “Without the safeguard of political reform, the fruits of economic reform would be lost and the goal of modernization would not materialize.” And in an interview with CNN in October, he recognized that “freedom of speech is indispensable for any country.”

The harmony, stability, and peaceful development that Beijing seeks will be on shaky ground until the CCP confronts the reality that top-down order is not consistent with human happiness, and that spontaneous order emerges from free markets and a genuine rule of law. Premier Wen, in his 2003 speech at Harvard, said that China has “found the right path of development” and that “the essence of this path is to . . . respect and protect the freedom of the Chinese people to pursue happiness.” In 2007, following the annual session of the NPC, he encouraged people to “oversee and criticize the government,” and said, “It is particularly important that we need to make justice the most important value of the socialist system.”

Justice, however, requires the prevention of injustice. Liu Xiaobo, Gao Zhisheng, and others entrapped by China’s jackboot justice system deserve to be heard, as do “the lost souls” of Tiananmen.

Judges also make bad calls sometimes. We know this because there is a judicial form of instant replay: the appeals process, including review by the U.S. Supreme Court. Occasionally, even the politically diverse Court clearly indicates to a lower court, through a unanimous decision, that the judge(s) blew a legal call.

Umpire Jim Joyce’s blown call cost Detroit Tigers pitcher Armando Galarraga the 21st perfect game in major league baseball history. After watching the televised replay, Joyce immediately (and tearfully) admitted his mistake. This notwithstanding, baseball commissioner Bud Selig declined to change the call. But would he have acted differently if Joyce had maintained, in the face of overwhelming evidence to the contrary, that his call was correct—or even worse, that he deliberately called the runner safe?

Turning back to the law, what happens if lower-court judges thumb their collective noses at the Supreme Court? This is a timely question, because it is about to be placed squarely in front of the Supreme Court.

In early 1999 John and Theresa Sophocleus were forced out of their home by Alabama’s Department of Transportation (ALDoT) as part of a highway-widening project. In court ALDoT representatives testified that they needed to raze the home immediately to ensure timely progress on the road project. In fact, the Sophocleus home was not razed for nine months, during which it was used as a residence for contractors employed by ALDoT. In other words, the specific public purpose given by ALDoT to justify the seizure, made under threat of $10,000-per-day fines, proved to be invalid.

Mr. and Mrs. Sophocleus sued ALDoT, arguing that the taking was unconstitutional since the state did not live up to the expressed public purpose used to justify the seizure and that therefore ownership should revert to them. The first federal judge to consider motions in the case, Susan Walker of the U.S. District Court for the Middle District of Alabama, issued three summary judgments in their favor. Their case then was taken over by Judge Myron Thompson of the same court, who ruled that they should have taken their claim to the state courts rather than the federal courts. But as Alabama State Code 18-1A-et seq. makes clear, as affirmed by Judge Walker, the correct venue for plaintiffs in a civil rights case is the federal judiciary. By an 8–0 ruling (Justice John Roberts had not yet joined the Court) the Supreme Court in 2005 remanded the case back to the district court for remedy.

After stalling four full years, Judge Thompson and the judges on the 11th Circuit Court of Appeals refused to admit the earlier call had been blown and reiterated the previously overturned position. Once again, Mr. and Mrs. Sophocleus will appeal to the Supreme Court.

The original writ they filed with the Supreme Court was only 12 pages long. Their point, simple and powerful, was supported fully by the Supreme Court. Make no mistake—a unanimous Supreme Court decision overturning their ruling means the lower court was told, loudly, that it blew the call. So why did it take Judge Thompson over four years to respond? One interpretation is that he knowingly intended to frustrate the stated direction of the Supreme Court by delaying remedial action until either Mr. and Mrs. Sophocleus or their critical witnesses died or became mentally incapacitated. More important: Why, in the face of overwhelming evidence to the contrary, has the lower court refused to admit it blew the call? This is the critical question for all Americans who believe that they live under the rule of law.

Presumably, the Supreme Court has a deep interest in whether lower-court judges follow their instructions—that is, actually follow the law. The law of the land is enshrined in the Constitution as interpreted by the Supreme Court. If lower-court judges do not pay attention to the Supreme Court, they are not upholding the law. By implication, we do not live under the rule of law; rather, we live under the arbitrary and capricious rule of rogue judges, with justice denied when it suits their purpose. The judge is attempting to deny the rule of law to Mr. and Mrs. Sophocleus.

Rogue judges impose their own capricious rulings because they know there is little consequence for their actions. By virtue of lifetime appointments to the federal bench, and with scant likelihood of impeachment by Congress, they can use the legal process and their position to effectively deny justice to victims of civil rights violations. We all have a critical stake in curtailing this type of judicial behavior.

There is one, and only one, remaining protection for Mr. and Mrs. Sophocleus against the denial of justice orchestrated by rogue Judge Thompson and the complicit appellate judges: Instead of remanding the case back to the lower court for remedy again, presumably with the same expected result, the Supreme Court should impose a remedy. Under the best of circumstances, the chance that the Supreme Court will take a particular case is remarkably slim. Nonetheless, the Sophocleuses hit a home run their first time at bat, but have been denied justice due to interference by rogue umpires. We can only hope that on appeal this time, the Supreme Court ensures that their previous home run is ruled a grand slam on behalf of all Americans.

To the Editor:

As a former wartime draftee — the Korean War — I’m of two minds re Aeon J. Skoble’s “Neither Slavery Nor Involuntary Servitude” piece in your September issue (“It Just Ain’t So!). No question, he did a very good job of picking apart the operational flaws inherent in any draft. But where I found him woefully deficient (especially considering the wonderful title of the piece!) was in how quickly he backed off from belaboring those two atrocious Supreme Court decisions designed back before 1920 to make military conscription look acceptable. I mean really, how can we libertarians hope to teach young people the rightness of our cause if we roll over so easily?
—JOHN SIMONS
Sheffield, Vermont

Aeon Skoble replies:

John Simons takes me to task for “how quickly [I] backed off from belaboring those two atrocious Supreme Court decisions” that failed to understand conscription from the point of view of the Thirteenth Amendment. But there’s nothing to belabor. My point was that it doesn’t matter, legally, whether I think that since conscription is involuntary servitude it ought to be forbidden by the Thirteenth Amendment—it only matters whether the Supreme Court thinks so. What does matter is my contention that regardless of the Supreme Court’s ruling, conscription is bad public policy. So I concentrated instead on replying to the flawed reasoning of contemporary academics and legislators who are in a position to drum up support for new policies. It would be important to refute the reasoning in Butler and Arver if I were preparing a brief for a court challenge to those decisions. But that’s not what is before us. What is before us are grandstanding politicians, backed up by some mistaken academic theories, proposing new laws that are irrational on several grounds. It is that reasoning to which I was responding. Simons wonders how we can “hope to teach young people the rightness of our cause if we roll over so easily?” I certainly wasn’t rolling over easily—I thought I was fairly strident—but there’s no point in pretending that Supreme Court decisions are other than what they are.

No Common Good?

To the Editor:

Professor Harold B. Jones, Jr.’s cursory dismissal of the idea of a “common good” deserves far more thought. (Review of The Collapse of the Common Good by Philip K. Howard, September 2003.) Relying as he seems to on individualism, of course, is a familiar theme for libertarians, but it seems to neglect matters of criminal law, constitutions, common law, natural law, and just plain common sense. While the author he reviews might have erred in his concept of the common good, e.g., in favor of collectivism, socialistic or bureaucratic solutions, gargantuan government, and so forth, the real debate should maintain respect for the common good while deciding just how far government should go. At times, this may even overlap what Jones might happen to consider the “well-being of the individuals of whom the commonality is composed.” (E.g., does he mean, “To each according to his needs?”) Otherwise, Jones will subject us to anarchy, another familiar pillar of libertarians which they’ve never entirely justified.

Jones’s idea of “justice” or “fairness to particular parties” is no easy paradigm. Both sides in court are seldom equally happy, so on what basis is it to be decided? His very mention of “fairness” and “justice” introduces an element above mere individualism.

Of course, rejecting the “common good” is a standard tactic for new movements — e.g., feminism, which considers it anathema — but it’s always a bit hypocritical since they also enjoy the benefits of civil society, courtesy, gentlemen, right law and order, family, property law, various ordered freedoms, security from predators, etc., all commensurate with the common good. That individuals benefit from the common good in many ways (a sort of trickle-down phenomenon) should be a given.
—W. EDWARD CHYNOWETH
Sanger, Calif.

Harold Jones, Jr., replies:

The “common good” is of necessity the good that is actually enjoyed by particular persons. There is no higher entity from which it can, in Mr. Chynoweth’s words, “trickle down.” It exists only to the extent that it bubbles up in the experience of concrete individuals.

A sense of “justice” is a part of this experience. It arises from the conviction that the law will be consistent in its defense of reasonable conduct. This does not mean that every party to every lawsuit will leave the court rejoicing. It means rather that third parties can look at the decision and reliably find either encouragement or warning with regard to whatever it is they may be planning. It means that laws can be trusted, in the words of Justice Holmes, as “prophecies of what the courts will do.”

The Collapse of the Common Good describes a society in which this has ceased to be the case. Its author fails to see that the ills he deplores are the result of what he suggests as a remedy. They are the result of government by men rather than by law. They are the result of precisely the fact that those whom Mr. Howard refers to as “people with responsibility” (bureaucrats) are permitted to impose their will on others “just because it seems right” (to the bureaucrat). The “plain common sense” to which Mr. Chynoweth makes his appeal says that any “good” forced upon the individuals concerned is not “common,” and it is unlikely to be experienced as “good.”

The level of social cooperation is highest when the government is restricted to guarding the borders, minding the infrastructure, and protecting the unoffending citizen. Under such a system, individuals can be confident about the rewards of honest effort. Each seeks his or her own good by providing something others regard as valuable. Any “debate,” as Mr. Chynoweth puts it, “over just how far government should go” is ultimately a debate over whose interests are to be encouraged and whose are to be sacrificed. When that debate is taken seriously, people seek to advance themselves not by providing a service but by having the law declare they are entitled to something at the expense of their neighbors. It is then only a short step to Hobbes’s description of the struggle of “every man against every man,” and to the social collapse of which Philip Howard writes.

Nature Conservancy Is Not Benign

To the Editor:

Re: Arthur Williams’s letter on the Nature Conservancy (TNC) in your October 2003 issue: TNC is not the benign organization that Mr. Williams holds it out to be. It lives not on individual donations but on corporate grants and federal tax dollars—more than $32 million between 1995 and 2000. Your readers may want to read the Washington Post’s investigative series on TNC, peruse some of the TNC-related postings on www.propertyrightsresearch.org and www.eco.freedom.org (instructive is the article “Nature Conservancy—Fraud and Theft”), and read “Nature’s Landlord,” published by Range Magazine.

The TNC may not engage in the terrorist activities used by Earth First, but it is advancing the same environmentalist goal— evict humans from broad areas of the country (a.k.a. The Wildlands Project) and prevent the productive use of land. The ongoing revelations about TNC’s modus operandi bring to mind Lord Acton’s observation on power and corruption.

—JOHN D’ALOIA JR.
St. Mary’s, Kansas

No Tears for Drug Companies, Please

To the Editor:

I always enjoy the articles in The Freeman: Ideas on Liberty. As a physician, I wish to comment on Doug Bandow’s article, “Healers Under Siege,” in the November 2003 issue.

In the article, the author paints the drug companies as underdogs — under siege. The reality is these companies have had their “foot in the door” at the Food and Drug Administration (FDA) for about 100 years. The Bureau of Chemistry, later renamed the FDA, was formed in 1906. Recent studies showed that over 50 percent of FDA employees were consultants for or in some way had worked for drug companies before or after their tenure at the FDA. This is a shocking case of the “revolving door” between a government agency and the industry it is supposed to regulate.

The legal “drug culture” in America, the product of excellent public relations and FDA rules, is not improving the health of the American people. That is a major reason health-care costs are rising so fast. Drugs are excellent for short-term trauma medicine. However, many drugs are toxic, and longterm they damage the body.

A recent study by the American Medical Association found that side effects of pharmaceuticals killed about 192,000 people each year, just in hospitals. This makes pharmaceuticals the fourth leading cause of death in America. There is definitely trouble in paradise, and the cost explosion in health care is but a symptom. Drug manufacturers lobby hard to defeat any proposals that would allow alternative products on the market that are far safer and less costly. The drug industry is part of a medical cartel held in place by licensing laws, hundreds of other anti-consumer laws, and the FDA, which has legislative, executive, and judicial powers all rolled into one.

For this reason, I grow weary of articles praising or feeling sorry for the drug industry. The reality of the legal drug culture is a classic case of government regulation gone awry.
—LAWRENCE WILSON, MD
via e-mail

Doug Bandow replies:

There’s no doubt that drug makers work hard to game the regulatory process, but that’s hardly a surprise when Washington asserts its control over the approval of new medicines. Government control is no more justified there than elsewhere in the healthcare system—such as limiting competition with MDs by other medical professionals. And while drugs should not be viewed as the only remedy for disease and injury, their benefits can be enormous.

The market is a complex order. A thief needs only violence to get rich; a cattle trader needs more things, such as order and justice; in other words, an environment where transactions can be safely completed. The market does not obey “the law of the jungle”—just the opposite: The law of the jungle prevails where there are no markets. Peaceful exchange with secure property rights is more productive than widespread robbery, but many criticize the rich regardless of the path they followed to opulence, as if they all had achieved their wealth illicitly. Apparently, George Bernard Shaw’s fallacious quotation still rules the day: “I am a gentleman: I live by robbing the poor.”

The most common way to make a fortune in a free market is organizing a successful company. How can this company succeed and pay handsome salaries? In a free market there is only one answer: by making something consumers appreciate. Under such circumstances, the businessman’s wealth is linked to the social utility of his labor, a utility proved by consumers who buy because they too benefit from the deal.

Of course, one can always make money breaking the law, as thieves and swindlers do. And there is also another method that, while unjust, does not always appear that way: to become rich by avoiding competition or gaining other privileges that only the state can grant.

Monopolies and protectionism exemplify these strategies. Both became the enemies of classical liberals, who argued in favor of the free market and against the privileged groups that injured the majority of the population by imposing high prices and limiting the ability to choose.

Alongside the state’s expansion during the past century, opportunities to profit from using the state to avoid competition have proliferated. Through the apparatus of government, lobbying groups have obtained power over their markets, subsidies, and every other kind of anticompetitive protection.

Blocking market activity breaks the connection between social needs and the supply of goods and services aimed at satisfying them. But it may turn out to be profitable: Fortunes have originated in anti-competitive privileges bestowed by political power or made possible by its regulations. In such cases it is fair to distrust the wealthy.

Often, however, no distinction is made when it comes to criticizing rich people. They all appear reproachable, and few dispute the need to impose on them specific burdens and progressive tax scales aimed at dealing with the “problem” of inequality. The state must force-fit all of us into a Procrustean bed.

Internal Robin Hood Service

Many thus would have the state play Robin Hood, robbing from the rich (no matter how they got the money) and giving to the poor. I do not dispute that this legend is open to several interpretations, including a plausible libertarian one. Robin Hood can be seen as an enemy of tyranny and the abuse of law, a friend of the people, a man who robbed tax collectors and privileged aristocrats, returning the money to the victimized peasants. This is a very appealing version of the story. My objection, however, is directed exclusively at the danger of casting the modern state in the powerful image of a hero seeking redress and justice. It uses this image to legitimize its vast distribution operations and to show its supposed liberality.

The notion of the state playing Robin Hood has two weaknesses. First, there is no way to prove that if the authorities take a dollar by force from a rich person and give it to a poor person, the collective happiness increases. As Anthony de Jasay says, the only way to solve the problem of comparisons between individuals is for the state to impose its preferences on the community. The outcome of these operations, in the words of Bertrand de Jouvenel, is not a redistribution of income from rich to poor but from everyone to the state.

The second weakness in the state-as-Robin-Hood argument is that it only works if the treasury is small. The state in the days of Robin of Locksley was limited, but when it takes on modern proportions, no matter what Barack Obama may say, it can no longer finance itself only by taking money from the very rich, who are by definition a minority. The state might pretend to do this, but in practice its only financing option is to take money from everyone.

One of the main arguments for the growth of the modern state is the fight against inequality. Some claim that without the state’s intervention, human beings would abandon the poor to their own devices and charity would prove both insufficient and insulting.

The allegation that, without the state’s helping hand, people would ignore their fellow human beings in poverty can’t stand even a cursory analysis. From the dawn of civilization, examples to the contrary abound. Voracious tax increases have not managed to extinguish the humanitarian impulse.

Charity is a noble and deep human feeling. Why is it dismissed and devalued? Why is it deemed humiliating, while state aid is viewed as a display of compassion?

Virtue Requires Liberty

Helping our fellow man and political distribution are very different actions. Let us take as an example the noble conduct of the Good Samaritan, a beautiful portrait of humanitarianism. A basic assumption—in truth, an essential element—of the parable is liberty. The Good Samaritan’s virtue stems from the fact that he acts voluntarily; if a centurion forced him to help the poor Jew, beaten and abandoned in the road, the parable would have made no sense. Virtue, in effect, demands liberty.

In this example, we see the demoralizing effect of state expansion. Many nongovernmental organizations, particularly in Europe, do not ask citizens to freely and voluntarily hand over a fraction of their income. Instead, they ask the state to extract sums from taxpayers’ pockets. Amazingly, the sacrifice of liberty and responsibility on the altar of political power is praised, while providing free and voluntary aid to one’s fellow man is dismissed as humiliating charity.

The fact is that where markets are permitted to work, fewer people need economic assistance of any kind. The centuries since Adam Smith wrote The Wealth of Nations have provided ample evidence to support his message: Free trade and security in one’s rights are the pillars on which individuals can improve their condition. Despite this, many people criticize the market economy and allege that it encourages marginalization. It is common to read statistics showing great poverty and accusations that market-oriented countries like the United States are infernos of inequality.

Not Condemned to Poverty

The problem with such statistics is that they are based on surveys that fail to track the same people through time. Thus they cannot provide the most important piece of information: Are the poor condemned to poverty or are they able to rise out of it? The statistics, in short, rarely measure social mobility. But when they do, they show that the poor have large possibilities of escaping the lowest percentile of income distribution. It is in fact more probable that a very poor person in America will climb to the highest income rung than that he will remain in poverty. One could argue that the data indicate mobility but not improvement, given that there is always a poorest 20 percent. Incomes in an advancing society like the United States, however, are not constant but rather are increasing—despite pervasive government interference—and this, not welfare, offers everyone the opportunity and the incentive to progress.

State-Sanctioned Inequality

Socialists and interventionists of all parties have reluctantly ended up accepting the market, but they claim government intervention is necessary to tackle inequality. However, inequality is only objectionable if there is a lack of competition and freedom. The modern state’s onerous and inefficient distributive structures, ostensibly built to wipe out inequality, have had perverse effects and a demoralizing impact on society, pushing different groups to fight over public favors. It is an out-of-control process in which, as the German liberal Ludwig Erhard said, everyone puts his hand in the pocket of everyone else.

The clamor from interventionists against inequality morphs into a clamor for a larger and larger state. This path leads to the loss of liberty and a distortion of both democracy and justice. It distorts democracy because, by attempting to solve inequality, it removes limits to power and expands the field of state action. It distorts justice because the only way to solve inequality politically is for the state to have the power to treat individuals unequally. Thus the struggle to eliminate inequality ends up destroying the most important form of equality for an open society: equality before the law.

I concurred on one point with “The Subsidy of History” by Kevin Carson (June 2008). It is not sound to view the historical development of capitalism as though it evolved strictly by fairness, without including the vices of mankind. Surely history is better stated by Burton Folsom in The Myth of the Robber Barons that there were “political entrepreneurs” and “market entrepreneurs” (even though Mr. Carson might criticize the latter as well).

However the view that emphasizes the reestablishment of justice, by confiscating much that is owned by the wealthy, leaves out much of reality. Today, we are beset by those who advocate taking from the oil companies, solely because they make “exorbitant profits.” Then there are those who seek to restore to Mexico the American states that were once Mexican territory. Similarly, there are those who seek reparations for descendants of slaves. These approaches take the view (which Mr. Carson might share) that the issue is solely a matter of justice, rather than adherence to the rule of law.

Hence let us assume, arguendo, that everything written in “The Subsidy of History” is completely correct (which I take as viewing capitalism in its worst light). There remain other factors to be addressed. For example, much of what industry has produced has been earned. Moreover, much of the earnings of the wealthy have been redistributed through taxation (and other mechanisms) to others. So it is not simply a matter of taking from the thieves to return to their victims, but also of considering that which industry has developed and that which our government has stolen from them. Moreover, it is overreaching for a country to attempt to correct that which was done prior to a man’s life. Thus, while there was loss to a man whose father was enslaved, it is beyond the capability of society to compensate for that loss. It is more than challenging for society to adequately deal with the injustices where those involved are living and the facts obtainable. . . .

Consequently, to deal with the issues of our day, I would begin with the presumption that possession is evidence of ownership. Then, given a case brought by an injured party (to the extent that he has been harmed), full compensation should be made. Finally, each guilty party requires due punishment. To operate instead by conflicting visions of justice would require a nation not of laws but of men.

—ALLEN WEINGARTEN
Monroe Township, N.J.

Kevin Carson replies:

I agree with Mr. Weingarten that there are good elements in American capitalism. Every society in history has been a mixture of the political and economic means to wealth. But even in American capitalism, I believe the overall structure is largely defined by the political means and that genuine markets operate mainly in the interstices of the state-corporate system. A purely market system, in my estimation, would have a lot more Ralph Borsodi and Lewis Mumford, and a lot less Alfred Chandler.

I also agree that there are serious practical difficulties involved in any rectification of past injustice. But inaction carries its own cost in ongoing injustice. The only fair comparison is between the net levels of justice involved in action and inaction, respectively. I’ve already made it clear where I believe the advantage lies in such a comparison.

by Robert Gellately

Alfred A. Knopf • 2007 • 696 pages • $35

Reviewed by Richard M. Ebeling

In his recent book, Lenin, Stalin, and Hitler, Florida State University historian Robert Gellately tries to explain the nature and the power of the Nazi and Soviet regimes in the first half of the twentieth century and how they were able to bring about so much death and destruction.

Gellately argues that Hitler’s was a “dictatorship by consent.” After the failure of his putsch in Munich in November 1923, Hitler decided that the only successful means to power was to use the democratic institutions of the Weimar Republic to end Germany’s decadent bourgeois “Jewish” democracy. He appealed to and came to embody all the desires and frustrations of the German people. When Hitler spoke, he mesmerized huge crowds who heard him express their humiliation by the Treaty of Versailles, which had branded Germany as solely guilty for World War I and then burdened them with reparations to the victorious allies. He captured their yearning for restored national greatness and power and their fears of unemployment and poverty during the Great Depression.

Millions of Germans saw Hitler not as the imposer of a “new order” but the provider and guarantor of a bright and beautiful future after he came to power in January 1933. In the 1930s, before the outbreak of the war in 1939, Nazi thugs or state executioners killed hundreds of Germans and sent thousands more to concentration camps. The remainder of the population either passively or actively supported the new Germany. The Nazi meat grinder was set in motion to kill millions of “non-Aryans” after the war began—Jews, Gypsies, Poles, Russians, and “impure” Germans who were either mentally or physically handicapped or “irredeemable” enemies of the state.

Gellately explains that there was nothing similarly consensual about the establishment and maintenance of the Soviet regime in the Old Russian Empire. Yes, there were many revolutionary idealists who willingly fought and killed to create a socialist utopia. Also, propaganda and indoctrination turned millions of Soviet subjects into supporters of the system. And there were countless Soviet sympathizers and fellow-travelers around the world who served as apologists and agents for the regime.

But Lenin and Stalin approached their task with a totally different mindset from Hitler’s. Being good Marxists, they believed that while the end of capitalism was “inevitable,” the masses were the victim of a bourgeois “false consciousness” imposed by the capitalist ruling class. The workers needed to be led and “reeducated” into being new socialist men. This required a revolutionary vanguard that would be ruthless in destroying the old order and creating the socialist utopia.

Gellately emphasizes that the Soviet nightmare was not the result of a “bad” Stalin who perverted the intentions of a “good” Lenin, which is how many historians have attempted to explain the Soviet experiment gone wrong. Gellately documents that the ideas of domestic terrorism, public executions, torture, and enslavement in what became the Gulag labor camp system were all Lenin’s. He ordered the crushing of all opponents, including those on the “left,” immediately ended any freedom of speech and the press, and nationalized the economy. He only stepped back from the totalitarian state in 1922 with his “New Economic Policy,” which reprivatized small and medium-size industry and trade and allowed a limited market in agriculture, when he realized that he was faced with so many rebellions among peasants and workers that his government might be overthrown.

Stalin was the great intriguer and manipulator within the Communist Party after Lenin’s death in 1924 and came to full power after 1928. But then he merely reinstituted Lenin’s radical vision with the collectivization of the land, the destruction of small private enterprise, and the imposition of five-year plans in 1929. Stalin also imposed with a vengeance the totalitarian terror state Lenin had first implemented after the revolution of November 1917.

Gellately emphasizes aspects of Stalin’s policies during World War II that have usually been ignored or only given limited attention. As the German army approached in October 1941, anti-Soviet graffiti began appearing on buildings, with workers grumbling that soon KGB agents would be getting what they had been meting out to them. Stalin ordered any citizens who fled the city without written orders to be stopped and if necessary shot—and dozens of men and women were killed for fleeing.

Stalin also ordered a scorched-earth policy as the German army advanced. But rather than just mandating the destruction of all facilities or supplies that the Germans might use after local residents had left, the order was to destroy everything and not allow the population to retreat. That policy left millions of people with nothing in the face of German occupation.

Furthermore, as the Soviets reoccupied territory in 1943 and 1944, Stalin commanded that close to a million people of various ethnic groups who were suspected of collaborating with the Germans be rounded up and sent to Siberia or Central Asia. Thousands died in transit or in exile. Most of these groups were not allowed to return home for more than ten years, until after Stalin’s death.

Unfortunately, the collectivist tragedy of the twentieth century did not end with Hitler’s and Stalin’s deaths. It has continued, now, into the twenty-first century.

Richard Ebeling is the president of FEE.

* * *

Depression, War, and Cold War

by Robert Higgs

Independent Institute/Oxford University Press • 2006 • 219 pages • $35

Reviewed by Burton Folsom, Jr.

In Depression, War, and Cold War, Robert Higgs has written a brief but superb account of the Great Depression, the economic effects of World War II, and America’s proclivity for unnecessary military spending in the postwar period.

This iconoclastic book is a coherent collection of ten essays on the political economy of the federal government’s welfare and warfare policies spanning the crucial decades of the twentieth century. When Higgs’s essays are put side by side, they send a persuasive message that military spending, whatever its international political effects, did not rescue the country from the Great Depression, did not increase standards of living during World War II, and did not provide weapons at competitive prices after the war. Quite to the contrary, Higgs strongly advances the thesis that the federal government only managed to delay economic recovery and to squander wealth with its economic and military meddling.

Higgs writes that “the New Deal prolonged the Great Depression by creating an extraordinarily high degree of regime uncertainty in the minds of investors.” That is to say, investors would have jump-started our stalled economy in the 1930s had it not been for the uncertainty caused by the policy spasms emanating from Washington. And in an attack on a durable myth, Higgs concludes that the war “itself did not get the economy out of the Depression,” because real private investment and real personal consumption sharply declined during the war. Stock market prices, for example, in 1944 were still below those of 1939 in real dollars.

What the war did do, Higgs argues, was to improve “economic expectations” that business would be allowed to invest freely after the war and that jobs would then be available. In part those higher expectations among businessmen reflected their relief that President Franklin Roosevelt had shifted from his attacks on property rights during the 1930s to his all-too-eager willingness to let big business monopolize war contracts.

Meanwhile, the making of weapons created inefficiencies during and after the war. Higgs describes the rise of “cost-plus contracts,” which allowed large corporations to win risk-free contracts that guaranteed profits regardless of efficiency. Such contracts were rare before 1940, but then became common. Senator Harry Truman, chairman of the Senate’s Special Committee to Investigate the National Defense Program, wrote, “Huge fixed fees were offered by the government in much the same way that Santa Claus passes out gifts at a church Christmas party.”

After the war, vote-hungry congressmen worked with “pork hawks” to win military contracts—whether the country needed them or not. In several essays Higgs attacks the notion that the high military spending in the Cold War era was undertaken just as a defense against the Soviet threat.

To cite one instance, politicians in Pennsylvania persuaded the Department of Defense to buy 300,000 tons of costly anthracite coal to ship to military bases in Europe. At one point, since most of the coal was not needed, it was stockpiled locally—20 feet deep and covering 45 acres. As Rep. Dan Flood of Wilkes-Barre said, “I use all of these opportunities, advantages, seniority, and all this stuff for the purpose of helping whatever is left of the goddamn anthracite coal industry.”

Higgs has other painful stories. In the 1970s and 1980s, for example, Congress continued to fund the A-7 subsonic attack plane even though it had been surpassed by the F/A-18 and F-16 planes. The A-7 plane, however, was produced by a Dallas company and the delegation insisted that funding to their Dallas friends be perpetuated.

Part of what makes Higgs’s book so valuable is that he tackles crucial economics topics that most economists and historians either neglect or do not understand.

Almost all historians, for example, take it for granted that federal spending in World War II lifted the submerged American economy out of the Depression tank. Few analyze that conclusion; they assert it as fact. And once such an alleged fact is established, the next step is to look at other ways the federal government, by various kinds of subsidies and tinkering, can improve economic development. Higgs, however, by persuasively challenging the effects of military spending, calls into question the ability of federal spending to promote real growth in the U.S. economy.

In challenging the “military-industrial-congressional complex,” Higgs urges readers to focus not just on any benefits accruing to Dallas for making obsolescent planes or to Wilkes-Barre for stockpiling coal, but to focus on the flow of dollars out of the hands of hard-working taxpayers all over the country—all of whom could have invested or spent their money more wisely and beneficially.

Burton Folsom is the Charles F. Kline Professor of History and Management at Hillsdale College. He is the author of The Myth of the Robber Barons, now in its fifth edition.

* * *

Cornerstone of Liberty: Property Rights in 21st-Century America

by Timothy Sandefur

Cato Institute • 2006 • 126 pages • $19.95 hardcover; $11.95 paperback

Reviewed by George C. Leef

Property rights are under constant and often successful attack in the United States.In 2007 the idea that an individual is entitled to own property and do with it as he pleases is fast becoming a relic of our quaint, long-forgotten past. One reason for that unhappy circumstance is that the general population has a dwindling understanding of the importance of property rights. The enemies of private property, who maintain that its use should be controlled for “the public good,” have made great inroads into the only ultimate defense that institution has—the belief in its essential rightness.

Timothy Sandefur, an attorney with the Pacific Legal Foundation who has fought in the trenches against the anti-property onslaught, sees the danger we face. To combat it he has written this excellent book. The Cornerstone of Liberty is a primer covering four crucial topics: why private property is important and must be defended; the place of property rights under our Constitution; the weakened state of property rights today; and the author’s views on the course of action we need to follow if property rights are to be restored. This is an important project, and Sandefur is to be congratulated for his good work.

His chapter “Why Property Rights Are Important” gets the book off to a blazing start. If readers don’t understand the moral and economic reasons for insisting that the rights of individuals to acquire, use, and sell property as they choose must be protected, they certainly won’t get much out of the book. Sandefur wants to see that they do. “Private property,” he writes, “is one of humanity’s great discoveries, like fire, DNA, or the scientific method. Like fire, property has the ability to release a kind of unseen power from nature. . . .” That is why societies that have defended property rights have rising standards of living and both social and technological progress. Conversely, the easier it becomes for people to deprive owners of their property, the less energy people put into productive work.

When societies regard private property with hostility, far from reaching some communitarian utopia, they not only get poorer but their people also lose the ability to live the lives they choose. Unless individuals can say, “This is mine and no one may take it,” they’re left at the mercy of those who are in control. Sandefur reminds us that people with the power to take property are usually anything but merciful—and not just in dictatorships, but also in “free” countries like the United States. Collectivists say that private ownership is based on greed, but what truly unleashes greed is the ability of some to take things from others.

To brilliant effect Sandefur quotes Frederick Douglass, who, after escaping from slavery, utterly delighted in his ability to earn money. Nothing contrasted so completely with the life he had known in slavery as to be able to call something his own.

In his next chapter, Sandefur demonstrates that the Constitution was meant to offer property owners a high degree of protection against the depredations of government. He quotes James Madison, who said that the proper role of government is the protection of property since “that alone is a just government which impartially secures to every man whatever is his own.” Unfortunately, legislators and judges have not been faithful to Madison’s vision. Sandefur recounts the dismal history of the erosion of constitutional protection for property rights.

Next, Sandefur gives us the really bad news—the current state of the law. It is no exaggeration to say that every American has only a tenuous hold on his property (real estate and personal property) because the law is sympathetic to eminent domain and other forms of takings, such as civil asset forfeiture. The author’s analysis of the recent Kelo decision on eminent domain is exemplary.

Can anything be done, or is the United States going to continue drifting away from property-rights protections? Sandefur is not a pessimist. He is a fighter and argues that it’s possible that the American people could come to take property rights as seriously as they did two centuries ago. “Only learning, understanding, and teaching others about the principles of property rights and their importance . . . can solve the problems posed by eminent domain abuse, land-use regulations, and civil asset forfeiture laws,” he writes.

Americans have been dozing while special-interest groups and their political lapdogs have done their dirty work in undermining private property, but there is hope that they are awakening. The outcry over the Kelo decision indicates that many Americans, for all the socialistic rhetoric they have heard, still believe that it’s fundamentally wrong for government to take away private property.

George Leef is book review editor of The Freeman.

* * *

Elements of Justice

by David Schmidtz

Cambridge University Press • 2006 • 243 pages • $70.00 hardcover; $24.99 paperback

Reviewed by Aeon J. Skoble

There’s a style of philosophical writing that is obscure, jargon-laden, and essentially inaccessible to nonspecialists. Happily, one of the most talented contemporary philosophers, David Schmidtz, is not a practitioner of that style. His newest book, Elements of Justice, is the kind of philosophy book that treats a serious topic in a thorough and well-organized way, while remaining entirely accessible to the intelligent lay reader. Schmidtz’s topic is justice, something everyone ought to take an interest in, and his rigorous yet readable treatment of it will be of value for academics and non-academics alike.

Some say that justice is a matter of giving each person his due. But that isn’t as helpful as it seems. It simply pushes the question back: how do we figure out what people are due? Schmidtz, who teaches philosophy at the University of Arizona, argues that while justice is primarily about what people are due, we cannot figure this out in an abstract way. Rather, we must look to the practical context in which the people are operating. Schmidtz breaks this down further, examining principles of desert, reciprocity, equality, and need. He sees those principles as the components of justice, and argues that if we can come to a better understanding of how they work, we will thereby come to a better understanding of what justice is.

“Different principles apply in different contexts,” Schmidtz tells us. That simple yet frequently overlooked point is the key to parsing the sorts of conflicts that typically emerge in discussions about justice. For instance, some believe that need is the overriding principle, while others regard equality as paramount. On Schmidtz’s view, this isn’t the best way to think about it. Neither of these component principles, he says, can be the entirety of justice, although in particular contexts one may predominate. For example, need might be the predominant principle in a child-parent context, determining what the children are due, whereas equality (in the sense of equality before the law) is what adult citizens are due. And even then, the context offers further refinements to our understanding.

Schmidtz makes an analogy between philosophical theories and maps: they’re abstractions, first of all, but can nevertheless be accurate. Qualities like detail and scope are means to an end, not ends in themselves. Maps are only useful in context. (A map of the earth won’t show you how to get to the train station in your town.) Similarly, a theory of justice can only apply its subsidiary principles in a context. Thus the way we talk about desert or reciprocity or need will depend on a consideration of that context. That is why, for instance, we might need to differentiate between a parent giving equal shares of his estate to his children and citizens in a republic being entitled to equal protection of the law, but not to equal shares of the total wealth in the society.

As he clarifies these principles and shows how justice depends on them (and on their being properly understood), Schmidtz defends several theses that speak to common myths and misconceptions. For example, he shows how liberalism isn’t about atomistic isolation, a frequent canard of the communitarian left. And he shows how pluralism does not entail moral relativism, a perennial concern on the right. He devotes separate chapters to close examination of two of the best-known modern philosophers, John Rawls and Robert Nozick—the former chiefly associated with the welfare state and the latter a proponent of the minimal state.

Readers of The Freeman will be particularly interested in Schmidtz’s arguments to the effect that the mere fact of income inequality does not necessitate forced redistribution by the state. He argues that the badness of poverty does not justify the disruption of a thriving economy. Rather, he maintains, to eliminate poverty we need a thriving economy coupled with a firm commitment to equality under law.

Of special note is the book’s structure. It is divided into six major parts: What Is Justice?; How to Deserve; How to Reciprocate; Equal Respect and Equal Shares; Meditations on Need; and The Right to Distribute. Each begins with an overview of a set of philosophical concerns, usually with a humorous anecdote to set the stage. The anecdotes are mostly little vignettes the humor of which derives from a misapplication of some ethical principle—for example, a judge issuing a ruling in which he lets someone off on a serious charge, on the grounds that he owes the person a favor: the virtue of reciprocity in action!

Within those parts are five or more chapters dealing with particular topics. For example, under “Equal Respect and Equal Shares,” Schmidtz examines the hot “equal pay for equal work” controversy. Each chapter opens with a thesis statement, followed by a careful elaboration and ending with a set of puzzles for further reflection. These “further reflection” opportunities are doubly valuable: the active participation they require not only involves the reader in philosophical practice, but also demonstrates that even when a satisfactory answer to a problem is reached, there may be further questions. By combining clear argumentation with the asking of probing questions, Schmidtz embodies philosophy at its best.

Aeon J. Skoble is an associate professor and chair of the philosophy department at Bridgewater State College in Massachusetts.

But in the course of his deferential dissent, Tomasi, who teaches political theory at Brown, avoids any reference whatsoever to the arguments of unfashionable classical-liberal or libertarian theorists. This is particularly striking because the dissenting arguments that Tomasi advances have for some time been advanced much more clearly and powerfully by various classical-liberal or libertarian authors–including authors such as Tibor Machan and David Schmidtz with some of whose works Tomasi must be familiar, since they appear in his bibliography.

To understand the character of Tomasi’s venture, one needs a brief sketch of the breathtaking intellectual developments that have issued from Harvard philosopher John Rawls over the last several decades. In his 1971 book, A Theory of Justice, Rawls argued that the principles of justice are the norms to which rational people who are unencumbered by any concern about their own specific personal traits, circumstances, or goals would agree. Such rational people would seek out principles that would nullify as much as possible social and natural inequalities. According to Rawls, these people would agree to principles that would mandate equal political liberty and radical income redistribution.

Despite his endorsement of extensive state action, Rawls’s position has one virtue from the point of view of genuine liberalism. Once one complies with Rawls’s various (and too demanding) principles of justice, one has satisfied all the demands of sound political theory and may live what remains of one’s life free from further political surveillance. It is this virtue of Rawls’s theory that Tomasi objects to in the first several chapters of Liberalism Beyond Justice.

According to Tomasi, what goes on in one’s life beyond one’s compliance with justice is also a concern of a proper political liberalism. Tomasi construes even one’s self-development and search for meaning as a civic duty, part of what citizenship demands. Accordingly, Tomasi contends that liberal theory mandates a civic education that “must also prepare each citizen to play her socially constructive role in making her society flourish as the type of society it is.” In effect, Tomasi politicizes dimensions of life that even Rawls at his most intrusive places beyond the purview of political liberalism. One shudders at the thought of the curriculum that would comprise that “civic education” and the people who would teach it.

Tomasi also focuses on the problem that, although a regime of political liberalism purports to be neutral among different conceptions of the good life, it in fact is likely to undermine certain of those conceptions. For example, a public emphasis on rights that individuals may exercise as they choose inclines people to think of their life plans as objects of deliberate choice, and this inclination undermines traditionalist or authoritative conceptions of the good life. Tomasi’s solution is to require liberal regimes to work harder at being respectful of all “reasonable world views.” This might involve, for example, greater tolerance within schools for expressions of religious views. It is a strange twist on liberalism to conclude that authoritarians must not only be free to promote their ideas, but that the state is obliged to help them.

More significantly, Tomasi dissents from the Rawlsian conclusion that all reasonable people would agree to a regime of coerced maximal downward income redistribution. Some reasonable people will instead believe that the way for them to fulfill their citizenship duty of nullifying misfortune is for them to engage in uncoerced income redistribution. A sound political liberalism must to some extent accommodate those who dissent from coerced maximal downward redistribution.

Tomasi has a glimmering here of two ideas that many classical liberals and libertarians have articulated. The first is that generosity and benevolence are virtues that only contribute to the goodness of one’s life if they are undertaken voluntarily. The second is that the more pluralistic a society is, the more difficult it becomes to get general agreement on enforceable positive duties. But, to do justice to these ideas, Tomasi would have had to venture beyond the cramped corridor of establishment liberalism.

What this book illustrates is how little the case for liberty has advanced within the confines of academic orthodoxy. Tomasi may think of himself as a bold intellectual rebel, but it would have been far bolder to have done justice to the classical-liberal ideas with which he is familiar.

Eric Mack is a professor of philosophy at Tulane University in New Orleans, Louisiana.