The Role of Courts and Judges According to Contemporary Libertarians
Hymson, Edward B., Southern Law Journal
Arguably, the two most influential libertarians of the twentieth century were Ayn Rand and Milton Friedman. Rand and Friedman disagreed on the appropriate activities for government in general and the legal system in particular. Both described the legal requirements underlying their philosophies; however, neither explained the responsibilities of courts and judges. That responsibility was left to others. Libertarian political theory holds that every man is a self-owner, having absolute jurisdiction over his own body, which means that each person justly owns whatever previously un-owned resources he appropriates or mixes with his labor. The structure justifies the rights of both contractual exchange and absolute property rights.* 1 Friedman recognized the problem raised by conflicting rights of citizens; Rand ignored such conflicts. Neither philosopher went much further in defining how the legal system should implement their philosophy.
Other libertarians trained in the law have offered competing descriptions of an optimal libertarian legal system. At least three competing structures emerge: the spontaneous order school, developed by Fredrich Hayek,2 the economic theory of law, pioneered by Richard Posner,3 and the continental system of civil law proposed by Gordon Tullock.4 Each alternative has its supporters and each is in conflict with the other two.
This article begins by describing the competing views of law offered by Rand and Friedman. It then examines alternate legal structures developed by Hayek, Posner, and Tullock, reviewing the strengths and weaknesses of each. The article then examines which structure fits best with the competing views of Rand and Friedman. It concludes with a brief summary.
II. Competing Views of Rand and Friedman
A. Ayn Rand 's Description of the Role of Law in Society
Rand's legal structure is derived from her ethical structure. She writes: "The Objectivist ethics holds that human good does not require human sacrifices and cannot be achieved by the sacrifice of anyone to anyone. It holds that the rational interests of men do not clash-that there is no conflict of interests among men who do not desire the unearned, who do not make sacrifices or accept them, who deal with one another as traders, giving value for value."5
Rand argues that the principles of market exchange should govern all interpersonal activity:
The principle of trade is the only rational ethical principle for all human relationships, personal and social, private and public, spiritual and material. It is the principle of justice. [A trader] deals with men by means of a free, voluntary, unforced, un-coerced exchange-an exchange which benefits both parties by their own independent judgment.6
This translates into a legal structure in which:
The basic political principle of the Objectivist ethics is: no manor group or society or government-has the right to assume the role of the criminal and initiate the use of physical compulsion against any man .... The only proper, moral purpose of a government is to protect man's rights, which means: to protect him from physical violence-to protect his right to his own life, to his own liberty, to his own property and to the pursuit of his own happiness. Without property rights, no other rights are possible.7
For Rand, "even a society whose every member were fully rational and faultlessly moral, could not function in a state of anarchy; it is the need of objective laws and of an arbiter for honest disagreements among men that necessitates the establishment of a government."8 She continues:
A complex legal system, based on objectively valid principles, is required to make a society free and to keep it free-a system that does not depend on the motives, the moral character or the intentions of any given official, a system that leaves no opportunity, no legal loophole for the development of tyranny.9
Rand's claim is that a society without an organized government would be at the mercy of criminals, precipitate chaos of gang warfare, and have no means of resolving disagreements. …