Libertarian theories of law
Encyclopedia
Libertarian theories of law build upon classical liberal and individualist anarchist
doctrines.
The defining characteristics of libertarian legal theory are its insistence that the amount of government intervention should be kept to a minimum and the primary functions of law should be enforcement of contracts and social order, though "social order" is often seen as a desirable side effect of a free market rather than a philosophical necessity.
Historically, the Austrian economist Friedrich Hayek
is the most important libertarian legal theorist. Another important predecessor was Lysander Spooner
, a 19th-century American individualist anarchist and lawyer. John Locke
was also an influence on libertarian law theory (see Two Treatises of Government
).
Ideas range from anarchocapitalism to a minimal state
providing mere enforcement of contracts. Some advocate regulation, including the existence of a police force, military, public land, and public infrastructure. Geolibertarians
oppose ownership of land on Georgist
grounds.
Individualist anarchism
Individualist anarchism refers to several traditions of thought within the anarchist movement that emphasize the individual and his or her will over external determinants such as groups, society, traditions, and ideological systems. Individualist anarchism is not a single philosophy but refers to a...
doctrines.
The defining characteristics of libertarian legal theory are its insistence that the amount of government intervention should be kept to a minimum and the primary functions of law should be enforcement of contracts and social order, though "social order" is often seen as a desirable side effect of a free market rather than a philosophical necessity.
Historically, the Austrian economist Friedrich Hayek
Friedrich Hayek
Friedrich August Hayek CH , born in Austria-Hungary as Friedrich August von Hayek, was an economist and philosopher best known for his defense of classical liberalism and free-market capitalism against socialist and collectivist thought...
is the most important libertarian legal theorist. Another important predecessor was Lysander Spooner
Lysander Spooner
Lysander Spooner was an American individualist anarchist, political philosopher, Deist, abolitionist, supporter of the labor movement, legal theorist, and entrepreneur of the nineteenth century. He is also known for competing with the U.S...
, a 19th-century American individualist anarchist and lawyer. John Locke
John Locke
John Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...
was also an influence on libertarian law theory (see Two Treatises of Government
Two Treatises of Government
The Two Treatises of Government is a work of political philosophy published anonymously in 1689 by John Locke...
).
Ideas range from anarchocapitalism to a minimal state
Minarchism
Minarchism has been variously defined by sources. It is a libertarian capitalist political philosophy. In the strictest sense, it maintains that the state is necessary and that its only legitimate function is the protection of individuals from aggression, theft, breach of contract, and fraud, and...
providing mere enforcement of contracts. Some advocate regulation, including the existence of a police force, military, public land, and public infrastructure. Geolibertarians
Geolibertarianism
Geolibertarianism is a political movement that strives to reconcile libertarianism and Georgism .Geolibertarians are advocates of geoism, which is the position that all natural resources – most importantly land – are common assets to which all individuals have an equal right to access; therefore if...
oppose ownership of land on Georgist
Georgism
Georgism is an economic philosophy and ideology that holds that people own what they create, but that things found in nature, most importantly land, belong equally to all...
grounds.
Notable theorists
Authors discussing libertarian legal theory include:- Bruce L. BensonBruce L. BensonDr. Bruce L. Benson is an American academic economist who is widely recognized as an authority on law and economics and a major exponent of anarcho-capitalism legal theory. He is DeVoe L. Moore Professor and Distinguished Research Professor at Florida State University, where he serves as Chairman...
(The Enterprise of Law: Justice Without the State) - Randy BarnettRandy BarnettRandy E. Barnett is a lawyer, a law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist in the United States...
(The Structure of LibertyThe Structure of LibertyThe Structure of Liberty is a book by legal theorist Randy Barnett which offers a libertarian theory of law and politics. Barnett calls his theory the liberal conception of justice, emphasizing the relationship between legal libertarianism and classical liberalism.Barnett argues that private...
) - Walter BlockWalter BlockWalter Edward Block is a free market economist and anarcho-capitalist associated with the Austrian School of economics.-Personal history and education:...
- Frank van DunFrank Van DunFrank Van Dun is a Belgian law philosopher and libertarian natural law theorist. He is associated with the law faculty of the University of Ghent....
- Richard Epstein (Skepticism and Freedom)
- David FriedmanDavid D. FriedmanDavid Director Friedman is an American economist, author, and Right-libertarian theorist. He is known as a leader in anarcho-capitalist political theory, which is the subject of his most popular book, The Machinery of Freedom...
(The Machinery of FreedomThe Machinery of FreedomThe Machinery of Freedom is a 1973 nonfiction book by libertarian economist David D. Friedman outlining the means by which an anarcho-capitalist society could operate...
) - Friedrich HayekFriedrich HayekFriedrich August Hayek CH , born in Austria-Hungary as Friedrich August von Hayek, was an economist and philosopher best known for his defense of classical liberalism and free-market capitalism against socialist and collectivist thought...
(Law, Legislation and LibertyLaw, Legislation and LibertyLaw, Legislation and Liberty is the 1973 magnum opus in three volumes by Nobel laureate economist and political philosopher Friedrich Hayek. In it, Hayek further develops the philosophical principles he discussed earlier in The Road to Serfdom, The Constitution of Liberty, and other writings...
) - Gene HealyGene HealyGene Healy is an American political pundit, journalist and editor.Healy is a Vice President at the libertarian think tank Cato Institute, as well as a contributing editor to Liberty magazine...
- Jacob Hornberger
- Stephan KinsellaStephan Kinsellaframe|right|Stephan KinsellaNorman Stephan Kinsella is an American intellectual property lawyer and libertarian legal theorist. His electronically published works are primarily published on his blog and websites associated with the Ludwig von Mises Institute and anarcho-capitalist...
- Bruno LeoniBruno LeoniBruno Leoni was an Italian classical-liberal political philosopher and lawyer.Besides being editor for the political science journal Il Politico, Leoni was also involved as secretary and later president of the Mont Pelerin Society...
(Freedom and the LawFreedom and the LawFreedom and the Law is the most important book written by Italian jurist and philosopher Bruno Leoni. It was first published in 1961 and the 3rd edition is now made widely available through the Internet by the Online Library of Liberty , with permission of the George Mason University.In this book,...
) - Robert P. MurphyRobert P. MurphyRobert P. "Bob" Murphy is an Austrian School economist and anarcho-capitalist.-Education and personal life:Murphy completed his Bachelor of Arts in economics at Hillsdale College in 1998. He then moved back to his home state of New York to continue his studies at New York University. Murphy earned...
(Chaos Theory). - Robert NozickRobert NozickRobert Nozick was an American political philosopher, most prominent in the 1970s and 1980s. He was a professor at Harvard University. He is best known for his book Anarchy, State, and Utopia , a right-libertarian answer to John Rawls's A Theory of Justice...
(Anarchy, State, and UtopiaAnarchy, State, and UtopiaAnarchy, State, and Utopia is a work of political philosophy written by Robert Nozick in 1974. This minarchist book was the winner of the 1975 National Book Award...
) - Roger PilonRoger PilonRoger Pilon is Vice President for Legal Affairs for the Cato Institute, and an American libertarian legal theorist. In particular, he has developed a libertarian version of the rights theory of his teacher, noted philosopher Alan Gewirth...
- Murray RothbardMurray RothbardMurray Newton Rothbard was an American author and economist of the Austrian School who helped define capitalist libertarianism and popularized a form of free-market anarchism he termed "anarcho-capitalism." Rothbard wrote over twenty books and is considered a centrally important figure in the...
(The Ethics of LibertyThe Ethics of LibertyThe Ethics of Liberty, by American economist and historian Murray N. Rothbard, first published in 1982, is an exposition of the libertarian political position...
)
See also
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- Equality before the lawEquality before the lawEquality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
- Judicial activismJudicial activismJudicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
- Law and economicsLaw and economicsThe economic analysis of law is an analysis of law applying methods of economics. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.-Relationship to other disciplines and...
- Classical liberalismLiberalismLiberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
- LibertarianismLibertarianismLibertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
- Philosophy of law
- Polycentric lawPolycentric lawPolycentric law is a legal structure in which providers of legal systems compete or overlap in a given jurisdiction, as opposed to monopolistic statutory law according to which there is a sole provider of law for each jurisdiction. Devolution of this monopoly occurs by the principle of...
- Rule according to higher lawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...