If I reflect back on my time in law school (I graduated 10 years ago) and my period working in a law school (which lasted roughly 5 years), there is a good chance I read more books and articles by Richard Epstein than any other soul. Epstein, an emeritus professor of the University of Chicago Law School and current professor at New York University School of Law, is easily the most influential libertarian legal academic in history. Though he has made some intellectual shifts over the decades, such as foregoing his youthful commitment to deontological libertarianism in favor of the consequentialist libertarianism often touted by those associated with the Law & Economics (L&E) movement, Epstein has remained surprisingly consistent in his belief that a good system of private law (torts, contracts, and property) can do a better job than public regulation in producing positive social-welfare gains. And though it seems like Epstein has written on every legal field under the sun (including Roman law), his primary focus remains private law and classical doctrinal analysis.
In a recent issue of the University of Chicago Law Review, Epstein comes to the defense of his preferred realm of legal concepts with an illuminating essay, “Concepts before Percepts: The Central Place of Doctrine in Legal Scholarship.” Epstein is disappointed that “the legal academy is awash in novel approaches to law, driven by a deep distaste for doctrinal analysis” for “[t]here is a strong push for empirical research, economic modeling and philosophical speculation, all at the expense of traditional doctrinal analysis based on close reading of decided cases.” As an empirical matter, Epstein is right. Ever since L&E took off in the 1970s, law review editors have found themselves drowning in submissions promising to revolutionize some area of the law by blending it with another academic discipline (philosophy, literature, basket weaving, etc.). Moreover, a premium is now placed on empirical analysis and fancy formulas, probably because they help make legal academia “look like” other, arguably more respected, fields. Without wishing to say there is no place in legal academia for such scholarship, there comes a point when it is necessary to look at the legal system itself and see if it is accomplishing what it ought to.
But herein lies the problem with Epstein’s article and, indeed, much of Epstein’s scholarship. Only by accepting Epstein’s conviction that the social end of the legal system ought to be “maximiz[ing] the welfare of all individuals under inevitable conditions of scarcity.” For Epstein, this means leaning on the “Pareto and Kaldor-Hicks measures of social welfare” because “they respect the subjectivity of individual preferences while using a compensation formula to measure collective social welfare.” Nowhere in Epstein’s writings is a clear defense of this position over-and-against thicker understandings of the common good, particularly the sort promoted by the Catholic intellectual tradition. Ultimately, what Epstein wants is a legal system that respects freedom of contract and property rights above all else, with the tort law serving as a private regulator of material harms. It is the market, not a clear conception of the common good, which orders society; any encroachment on free competition is anathema except in rare instances where there is a restraint on trade, such as cartelization.
This is a position no Catholic can accept, as Pope Pius XI made perfectly clear in his 1931 encyclical, Quadragesimo Anno.
Just as the unity of human society cannot be founded on an opposition of classes, so also the right ordering of economic life cannot be left to a free competition of forces. For from this source, as from a poisoned spring, have originated and spread all the errors of individualist economic teaching. Destroying through forgetfulness or ignorance the social and moral character of economic life, it held that economic life must be considered and treated as altogether free from and independent of public authority, because in the market, i.e., in the free struggle of competitors, it would have a principle of self direction which governs it much more perfectly than would the intervention of any created intellect. But free competition, while justified and certainly useful provided it is kept within certain limits, clearly cannot direct economic life – a truth which the outcome of the application in practice of the tenets of this evil individualistic spirit has more than sufficiently demonstrated. Therefore, it is most necessary that economic life be again subjected to and governed by a true and effective directing principle. This function is one that the economic dictatorship which has recently displaced free competition can still less perform, since it is a headstrong power and a violent energy that, to benefit people, needs to be strongly curbed and wisely ruled. But it cannot curb and rule itself. Loftier and nobler principles – social justice and social charity – must, therefore, be sought whereby this dictatorship may be governed firmly and fully. Hence, the institutions themselves of peoples and, particularly those of all social life, ought to be penetrated with this justice, and it is most necessary that it be truly effective, that is, establish a juridical and social order which will, as it were, give form and shape to all economic life. Social charity, moreover, ought to be as the soul of this order, an order which public authority ought to be ever ready effectively to protect and defend.
Of course, I don’t expect that Epstein, a man who has kept his religious leanings to himself, to accept the magisterial teachings of the Church. However, those Catholics inclined to agree with Epstein’s approach to law and the economy ought to think twice about how far they are willing to follow Epstein down his libertarian path. Even though Epstein has provided some of the best and most spirited defenses of a strong system of private law available, it is his unquestioned ideological attachment to certain libertarian premises behind his view of what the private law ought to look like which renders that view unacceptable by Catholic lights. Further, while Epstein’s instincts do appear to be in the right place with regard to private law holding a higher position in the social order over public regulation, the latter cannot be set aside or reduced to the level Epstein and other libertarians wish to see. Even freedom of contract—one of Epstein’s preferred legal doctrines—must be scrutinized in the light of what is being contracted for. For while there is no sensible reason Farmer Bob can’t contract to trade 10 chickens for Farmer Joe’s prized sow, it’s a different story altogether when Farmer Bob is contracting to pimp out his wife for that pig.