The Structure of Liberty: Justice and the Rule of Law

by Randy E. Barnett

Clarendon Press, Oxford (1998)

Reviewed by the Hon. Richard B. Sanders

Liberty has a structure, argues Randy Barnett. From natural rights at the foundation to the utopian view from the observation deck, he constructs a model of a free society, a society structured by institutions, both public and private, that are designed to meet its purpose. His analysis is not easy reading, nor is it intended to be. All too many people lack the example set for the author in his early years by his father's "overriding concern for principle, right and liberty." But those who follow his argument will be challenged and rewarded.

Barnett defines justice as respect for individual rights and sketches a system of laws and institutions that can protect the private domain of each citizen from interference by others. But there is something more fundamental: human nature itself. From the human’s natural instinct to survive and prosper necessarily come the rudiments of the social and legal structure that is most likely to serve those ends. Thus, Barnett begins with a natural law analysis that proceeds from human nature and the physical facts of the world to a system that can best accommodate human aspirations. His reliance is on the law of nature, discernible by reason.

The structure of liberty must then be designed, and designed with sufficient skill to enable it to withstand the gravitational forces which seek to bring it down. It must also be made free of any contradictions that might weaken it from within.

One of those contradictions is exposed by Barnett’s challenging thesis that the more types of rights we recognize, the more violence we legitimate. To put this in another way, every legal right of one person is a legal obligation of another, because every right, by its nature, is subject to enforcement through the coercive power of the state. We do not have legal rights so that we may do things; we have rights only so that others shall do, or must not do, something. Legal rights are therefore a necessary evil because they compel or constrain what we would otherwise not do by choice.

First among those rights is the recognition that individuals and associations have control over physical resources within their domain, and, concomitantly, over the right to transfer those resources through contract. Implicit in the recognition of these rights is the legal obligation of others to refrain from nonconsensual physical interference. This is only just, as justice is respect for the rights of individuals and associations. Accordingly, violating these rights by force or fraud is unjust.

It is justice, in this sense, which our government and legal system were designed to protect. The Declaration of Independence says as much: "governments are instituted among Men" to secure the "inalienable rights of Life, Liberty and the pursuit of Happiness." The idea is reiterated in various state constitutions. The Washington State Constitution, for example, begins by stating governments "are established to protect and maintain individual rights" (Wash. Const. art. I, 1).

I have no doubt that natural law, and the natural rights which follow from it, profoundly influenced the Founding Fathers; although, as Barnett says, the result of the Founders’ method are far from self-evident from a twenty-first-century perspective. Barnett points out, however, that laws which are not consistent with natural rights are laws only by force, not laws of conscience that are self-equipped with their own reason for observance.

It is not clear that modern protections, and often extensions, of rights are more effective than the old common-law protections. The common law was uniquely suited to protect individual rights by deciding each case, and no more, so as to define the boundaries between one man's rights and another's acts. It was certainly no place for social revolution or radical innovation. Legislation was originally designed to correct the occasional errors of the common law and occupied a relatively small role on the legal landscape. However all that has changed as the modern day legislature sees its role not as correcting the common law but as supplanting it. According to Barnett, "Where the legal system has moved away from a conception of justice based on several property and freedom of contract it has been largely a result of legislation inspired by academic, self-styled reformers." (Page 125.)

If we are to construct a classically liberal conception of justice focused on the protection of individual rights, and sparingly define them at that, we must still consider what to do about those who violate the rights that we may carefully and sparingly, but necessarily, define. Here Barnett opts for a system which emphasizes self-defense and restitution in lieu of punishment.

Of course incarceration is the ultimate form of societal self-defense, although incarceration beyond what is necessary for self-defense would not serve that end, and could not be justified on that ground. (I tried to make this point in my lone dissent to uphold Washington's three strikes law, arguing that it was against claims of unconstitutionally cruel punishment in State v. Rivers (921 P.2d 495 [1996].) But there are other forms of self-defense as well, e.g., security guards, limited access facilities, etc. Privately owned facilities are more defensible than public ones as there is more incentive to defend one's own private property than someone else's. Defense of private property is also easier than defense of public property because of the "dilemma of vulnerability" which prevents government from restricting access to public property in the interest of liberty; a dilemma not faced by whereas private owners.do not face that problem.

Then there is the more traditional self-defense whereby individuals use coercive force in a self-help fashion to defend themselves and their property against attack. The burglar predictably fears an armed homeowner much more than possible police apprehension. Unfortunately, self-defense against unlawful arrest or state-sanctioned rights violating conduct in general is not discussed by Barnett, though it is well recognized in the common law, if not consistently so by the court on which I sit. (See my dissent in State v. Valentine, 935 P.2d 1294 [1997].)

Restitution from criminal defendants also has much to recommend it. This is perhaps the only way for the true victim of the crime to have any hope of being made whole again. Under the current system, restitution is underutilized and hard even to recognize in theory. This is true because the offense is considered to be against the state, not the individual. In my state, for example, talk of "victim's rights" usually translates into the right of the victim merely to be informed of the course of the criminal prosecution and have some input at sentencing. (Compare Wash. Const. art. I, 35.) Under Barnett's proposal, however, the offender would be "confined to an employment facility" until the restitution was paid as a condition to release. Although this would do something for the victim (assuming that he isn't dead), the nature of the underskilled deadbeats who make up the lion's share of our criminal population may present some practical challenges, which Barnett also, perhaps optimistically, thinks can be overcome.

Of course, there are still those who will slip through our public and private defenses, and neither be deterred nor be willing to make restitution. What of them? These are the "outlaws." Barnett suggests that, in lieu of incarceration, they be deemed outside the protection of the laws themselves or perhaps be banished to secure areas to fend for themselves, with their own kind. Perhaps over time such communities (like Australia) would be once again fit for social intercourse; however until then, good riddance.

This utopian proposal to the contrary, Barnett strives to be practical. He notices that punitive sanctions are difficult to administer because of the high burden of proof that is necessary to avoid the error of subjecting innocent people to punishment. Moreover, while the degree of deterrence is more a function of the expectation of being caught and sanctioned than it is of the severity of the sanction, a nonpunitive sanction could operate on a mere preponderance of the evidence rather than the principle of "beyond a reasonable doubt."

There remains the problem of who guards the guardians. The "single power" principle which places all force in government hands inevitably leads to the abuse predicted by Lord Acton: "Power tends to corrupt and absolute power corrupts absolutely." Barnett's answer to this is decentralization and competition: private, competing court systems and enforcement agencies. We already have seen more than the beginnings of this. Many litigants currently prefer to take their disputes to private arbitration services which insure quicker and perhaps more consistent results than the government court system. And private security agencies now employ more security guards than the government provides police. Government courts and police agencies are only accountable in a political way, whereas private security agencies are accountable to the market’s standards of performance.

Clearly, Barnett’s book is full of ideas to examine, matters to look into. The view from the observation deck on the top floor tells us the ground is a good many stories below; however, the structure of liberty is more visible now than it was before this book was written, even if it is still a bit in the clouds.

Richard B. Sanders is a Justice of the Washington Supreme Court.