The Structure of Liberty: Justice and the Rule of Law

The Structure of Liberty: Justice and the Rule of Law

The Structure of Liberty: Justice and the Rule of Law

The Structure of Liberty: Justice and the Rule of Law


What is liberty, as opposed to license, and why is it so important? When people pursue happiness, peace and prosperity whilst living in society, they confront pervasive problems of knowledge, interest, and power. These problems are dealt with by ensuring the liberty of the people to pursue their own ends, but addressing these problems also requires that liberty be structured by certain rights and procedures associated with the classical liberal conception of justice and the rule of law. Drawing upon insights from philosophy, economics, political theory, and law, Randy Barnett examines the serious social problems that are addressed by liberty--and the background or "natural" rights and "rule of law" procedures that distinguish liberty from license. He then outlines the constitutional framework that is needed to protect this structure of liberty. Athough this controversial new work is intended to challenge specialists, its clear and accessible prose ensure that it will be of immense value to both scholars and students working in a range of academic disciplines.


The problem of knowledge in society is ubiquitous. So are the means by which we cope with it. Perhaps this is why the knowledge problem is so easily overlooked as a problem in need of a solution. The particular problem of knowledge that I am interested in here concerns the knowledge of how to use physical resources in the world.

All human beings are confronted with a multitude of ways that they may use physical resources, including their own bodies. The challenge of making good choices regarding the use of resources would be difficult enough in an "atomistic' world where one's choices had no effect on the choices of others. Since this is not our world, the problem of a person or association making knowledgeable choices among alternative uses of physical resources is compounded by other persons and associations striving to make their own choices. Indeed, given the number of possible choices persons might make, the number of persons making choices, and the physical proximity of each to the others, it is remarkable that the world is not in complete chaos. The world is not in chaos, I suggest, because concepts and institutions have evolved to harness the diverse knowledge about potential uses of resources in a manner that contributes to harmonious and beneficial interaction.

In this chapter, I discuss what I call the "first-order problem of knowledge." This is the problem of knowledgeable resource use that confronts every person in any society. No one has placed greater stress on this particular knowledge problem than Friedrich Hayek. As he explains:

The peculiar character of the problem of a rational economic order is determined precisely by the fact that the knowledge of the circumstances of which we must make use never exists in concentrated or integrated form but solely as the dispersed bits of incomplete and frequently contradictory knowledge which all the separate individuals possess. The economic problem of society is thus not merely a problem of how to allocate "given" resources--if "given" is taken to mean given to a single mind which deliberately solves the problem set by those "data." It is rather a problem of how to secure the best use of resources known to any of the members of . . .

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