SPEAKABLE ETHICS, NATURAL LAW THE STRUCTURE OF LIBERTY: JUSTICE AND THE RULE OF LAW. By Randy E. Barnett. Clarendon Press, 1998.
The central problem of the twentieth century has been this: that no matter where political power has been invested, it has been abused in greater or lesser degree by rulers who have been corrupt, power-mad, incompetent, or varying shades of all three. The extent of this abuse has varied according to circumstance, but even in its comparatively mild manifestations-for instance, the internment of American citizens of Japanese descent during World War II as opposed to, say, the depredations of Stalin, Mao, Hitler, and Pol Pot-it has been enough to make a mockery of the principles by which that investment of power has been justified. The result has been a growing worldwide disillusionment with politics and politicians, quite possibly prefiguring a significant postmillenial shift.
It may turn out that the nation-state, at least in its modern form, is on the way out. Certainly its track record should give even its most enthusiastic proponents pause: rather than preventing a Hobbesian war of all against all, modern nation-states have embroiled their citizens in a Hobbesian war of nation against nation. Furthermore, though aimed at policing smallerscale varieties of oppressive behavior, such as unfair employment relations or family violence, the modern nation-state has by its very size and power facilitated larger-scale oppression, such as concentration camps, genocide, and mass conscription. As Assistant Secretary of State for Human Rights John Shattuck notes, "In the twentieth century the number of people killed by their own governments under authoritarian regimes is four times the number killed in all this century's wars combined."1 While traditional oppression has always been bad enough, only the modern industrial nationstate, with its vast resources of control and coercion, could empower a Stalin or a Hitler. It thus seems time for real discussion of whether the experiment initiated by Otto von Bismarck and his contemporaries should be pronounced a failure.
Randy Barnett's The Structure of Liberty2 should serve as an excellent springboard to such a discussion. Gannett's approach deserves high marks for both courage and humility. It required courage because, after Arthur Allen Leff's Unspeakable Ethics, Unnatural Law,3 and Memorandum from the Devil,4 it takes no small amount of bravery for a law professor even to mention natural law. And it required humility because Barnett's approach is far more modest than the bloated 1970s legal-philosophical tomes that Leff so brilliantly deflated. In truth, these two characteristics are intertwined: Barnett's piece is immune to Leffian attack precisely because it does not attempt to answer questions that Leff viewed as essential and unanswerable. Leff famously wrote:
I want to believe-and so do you-in a complete, transcendent, and immanent set of propositions about right and wrong, findable rules that authoritatively and unambiguously direct us how to live righteously. I also want to believe-and so do you-in no such thing, but rather that we are wholly free, not only to choose for ourselves what we ought to do, but to decide for ourselves, individually and as a species, what we ought to be. What we want, Heaven help us, is simultaneously to be perfectly ruled and perfectly free, that is, at the same time to discover the right and the good and to create it.
I mention the matter here only because I think that the two contradictory impulses which together form that paradox do not exist only on some high abstract level of arcane angst. In fact, it is my central thesis that much that is mysterious about much that is written about law today is understandable only in the context of this tension between the ideas of found law and made law: a tension particularly evident in the growing, though desperately resisted, awareness that there may be, in fact, nothing to be found-that whenever we set out ,to find "the law," we are able to locate nothing more attractive, or more final, than ourselves. …