Amazon kindly informs me that I bought this book on September 22, 2004,
over nine years ago. That's how far behind I can get on my reading.
(And I'm pretty sure there are older books further down
Fortunately, the book's arguments are timeless. That's what I keep
telling myself anyway
Richard Epstein has been my nerdy hero especially since then-Senator
Joe Biden held up his book Takings during the confirmation
hearings for Clarence Thomas as an example of what no decent human
being, let alone a prospective Supreme Court Justice, could
subscribe to. Epstein's thoughtcrime in that book was to
object to government's unlimited eminent domain power.
Epstein didn't, mind you, object to eminent domain totally.
In fact, he held that some sort of eminent domain
power was necessary for the proper functioning of government.
But he argued that many government activities should be regarded
as "takings" of private property, and therefore meet
the requirements of the Fifth Amendment: that they be for
"public use", and that there must be "just compensation."
And to Biden, the notion that the state could not do whatever
struck its fancy in the economic sphere was complete heresy.
Since then, Epstein has written a series of books defending
(he has a
coming out next month, I see). As befits a University of Chicago
Law Professor, his arguments tend to discuss things from a legal
perspective, as opposed to a philosophical or economic one. He contends that
the law (properly understood) contains features of an "emergent
order", where centuries of messy practice and evolution have
assembled into a coherent working system. Like the parallel
economic system, what results isn't flawless. It's just far superior
than what could have resulted from the top-down design fantasies
In this book, Epstein first lays out his views of the classical liberal
vision: strong respect for individual autonomy and responsibility,
and private property rights. The state's role is to provide physical
and legal infrastructure (backed up by, yes, eminent domain when called
for) and protection of the citizenry against aggression and monopoly.
This is a somewhat more expansive role for the state than envisioned by
libertarians that lean toward anarchy, but Epstein's arguments are
In the remainder of the book, Epstein
lays out his rebuttals to a various
modern challenges to classical liberalism: attacks on its moral
foundations and its assumptions about human nature. And, as far
as I can tell, he does a fine job there too.
Because I have to be honest: the book is very heavy intellectual
lifting. Epstein is a vigorous participant in high-level
intellectual debates that have been going on for decades, some
of them centuries. This book presumes an everyday familiarity
with the topics that many more casual readers (specifically: me)
lack. Not saying I couldn't get up to speed by reading me
some Amartya Sen, Joseph Raz, etc. And then pursuing a law degree.
And then rereading relevant sections
of this book.
But that's not likely to happen.
Arguably, Epstein could have written more accessibly. Less legal-brief
prose, more like Jonah Goldberg or Kevin G. Williamson. He's no Milton
Never mind that, though. Epstein's still one of my heroes, even if I can't
understand him as well as I would like.