Epstein on Epstein

By McIntyre, Andrew | Review - Institute of Public Affairs, September 2004 | Go to article overview

Epstein on Epstein


McIntyre, Andrew, Review - Institute of Public Affairs


Richard A. Epstein, the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, recently visited Australia to address some IRA functions. Here he discusses some of his formative experiences and his classical liberal outlook for a better world.

RICHARD Epstein is an unbridled optimist. He holds a firm belief that, through patience and the logical application of well constructed arguments, social conditions will improve.

But he is also a noted contrarian. In an interview several years ago, Epstein once remarked, 'My intellectual style has always been that of a contrarian. If there's a position everybody thinks is right and is happy with, then they're probably wrong. And the reason they are probably wrong is that they spend too much time on self-congratulation instead of attacking each other.'

To put it another blunter way, his attitude is, 'talk is cheap, so let's debate'. Although he attributes some of this attitude to his liberal law education when he studied at Oxford back in 1966, when challenged that this disposition had perhaps more to do with basic personality than coursework, he volunteered, 'I wish I knew where it came from. To some extent it came in part from my parents, both of whom had strong contrarian instincts. Both were tenacious in the way they thought about certain problems. In part, it was just spending my life in thinking about things. I recognized that people tend to go lax when there is no competition, so I decided that I was going to become the competition!

But Epstein is not always a contrarian. Where he sees a set of manoeuvres, or set of arguments or doctrines, with which he is in logical agreement, he asks 'Why add anything?' It appears that there is a selection effect going on which leads him to choose those particular topics where things appear wrong.

Clearly, Epstein found a good deal wrong with cartels, on the one hand, and with limitless libertarianism on the other. In a book just jointly published by the IPA and NZ Roundtable, Free Markets Under Seige, to coincide with his Australian visit, Epstein made some very simple institutional observations. When he looked at the so-called reforms of the 1930s and the New Deal period in the US, he discovered that virtually every constitutional argument in favour of legislative discretion was an argument which allowed somebody to maintain or perpetuate some kind of cartel. He explained: 'When you square that against Economics 101 on the relative effects of competition and monopoly, it becomes almost amazing that someone in the political arena could be completely indifferent between the two systems, when the social theory on their resource effects is so clearly in favour of competition unless there is some independent justification for a monopoly, as with intellectual property and certain network industries'.

Epstein believes that he has been very lucky, because in addition to that insight, he was also able to figure out what was wrong with his libertarian theories. 'Historically, there are no pure libertarians in the common law or in the Roman law. I realized that the exceptions made to libertarian principles on contract and property had an underlying pattern. And I found it. It became clear to me that the whole doctrine of "privilege" was very well constructed. The basic proposition was that you can use coercion to override common law rights to the extent that it provides benefits to all the individuals who are subject to the coercive power of the state.'

Epstein is known internationally for his logical rigour. A very fast and precise speaker, he seems to develop arguments that create seamless and completely watertight cases, in all circumstances. The notion of abstraction is anathema to him. He is understandably quite scathing about the post-modernists. 'The French modernists, the people who start talking about language, Dada, Foucault and all the rest of that tradition, I regard as next to useless for the business of making and interpreting laws and agreements.

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