A Noble Failure

Skepticism and Freedom: A Modern Case For Classical Liberalism
by Richard A. Epstein.
University of Chicago Press. 311 pp. $35

We do not lack theoretical “defenses” of liberalism. Indeed, academic political theorists have produced them by the truckload over the past several decades. Restatements of the case for classical liberalism, however, are less common—and, for that reason, all the more needful. In Skepticism and Freedom, Richard A. Epstein, a distinguished legal theorist and University of Chicago law professor, provides us with a lucid and vigorous—if ultimately flawed—account of classical liberalism that goes a significant way toward satisfying our need for thoughtful reflection on the foundations of the liberal democratic order.

As the subtitle of Epstein’s book makes clear, his is a modern case for classical liberalism. Seeking to defend and reinvigorate an older tradition of liberal politics and political economy, he draws freely on economic arguments, the broad tradition of natural rights liberalism, the work of Friedrich Hayek, and some of the insights of “rational choice” theory. In particular, Epstein sets out to modernize the classical liberal tradition by showing how it conforms to the permanent nature and needs of human beings as revealed by both ordinary experience and the full range of the empirically oriented social sciences. Epstein attempts to demonstrate that the premises of liberalism are much more than rational “deductions” from a priori philosophical principles. He wishes to take the natural in natural law seriously without confusing natural rights liberalism with a crude social Darwinism or with a narrow utilitarianism that is unable to affirm any permanent principles or enduring truths.

Authentic liberalism, in Epstein’s presentation, places its confidence in the “autonomy” of the individual, in legally defined property rights, and a system of torts which redresses “force and fraud” in an imperfect world. But the true liberal is no anarchist and does not consider the state to be his enemy. The liberal does not hesitate to admit that limited government needs extensive, coercive authority within its own realm. As Epstein puts it near the end of his book, limited government is necessarily “a large and complex undertaking.”

At the heart of Skepticism and Freedom is a distinction between two versions of skepticism, one conducive to, and the other destructive of, human and political liberty. The first kind of skepticism entails a healthy suspicion of the ability of government to substitute itself for the prudence, preferences, and good sense of responsible individuals. The second form of skepticism endorses moral and cultural relativism and denies that a rational defense of the principles of the free society is possible. The first form of skepticism protects free peoples against the temptation of collectivism, the second subverts the possibility of any principled distinction between free and tyrannical social and political arrangements.

Epstein’s detailed analysis and defense of what Alexis de Tocqueville might have called “skepticism rightly understood” succeeds in vindicating “self-interest” as the inescapable starting point of individual and collective action in a world characterized by scarcity (and, a Christian would add, original sin). But what of the challenges posed by the behavioral sciences and postmodernist philosophy to the very idea of stable individuality and rationally discernible self-interest? Epstein takes on these comers, too, with his characteristic self-assurance. He freely admits that not every individual is able to calculate his interest with absolute clarity at every moment of time. Nonetheless, the freely chosen “preferences” of individuals, restrained by the rule of law and a sense of fair play, are in his view our best bet for allowing hundreds of millions of people to coexist in relative peace and without undue constraint.

Epstein—like the older liberal tradition to which he is indebted—is at his best in describing the salutary role that “interest” plays in individual and collective life. In a classic study of the subject, Albert Hirschman has reminded us that, historically, “interests” were defended by the likes of Adam Smith and Montesquieu as a humanizing substitute for the destructive martial and religious “passions” that tore asunder early modern Europe. Market societies, built upon what Leo Strauss famously called the “low but solid” ground of rational self-interest, have created conditions of civil peace and economic prosperity that are truly unprecedented in the historical adventure of humankind. But if self-interest is a powerful motive of human action, it is of course not the only or highest one.

While Epstein is much less rigid than rational choice theorists who reduce everyone and everything to the sole motive of self-interest (these theorists delight in claiming that even Mother Teresa’s behavior can be so explained), he still is not free of the cardinal sin of economic liberalism. His approach “economizes” the affections that connect human beings and make them more than autonomous individuals. To his credit, Epstein does appreciate that “there are more things in heaven and earth than are dreamed of” in the philosophy of rational self-interest. At times, he takes his fellow political economists to task for failing to appreciate that fellow feeling and a sense of obligation and benevolence sometimes rule the hearts of men. But Epstein is ultimately unable to bring together self-interest and sympathy in a measured account of the motives that orient human action. His excessively individualistic starting point distorts his anthropology. Despite his best efforts, Epstein tends to treat everything outside the realm of self-interest as peripheral to an understanding of the deepest sources of human conduct.

Epstein is at his most impressive in distinguishing salutary skepticism from full-fledged moral relativism. In chapters three and four of Skepticism and Freedom, he challenges the fashionable relativism of the academy and reveals himself to be an effective practitioner of commonsense moral justifications. His targets include the overrated Oliver Wendell Holmes (who disparaged all moral preferences as arbitrary choices akin to the choice of coffee with or without milk) and the brilliant pragmatist Judge Richard Posner. In a devastating riposte to both, he asks, “Just what is the cash value of a [pragmatist] position that is open to everything and commits to nothing, and takes pride in its elusive quality, and refuses to offer any systematic defense of any institutional arrangements?” Epstein rightly concludes that such pragmatism erodes the moral foundations of the free society.

In contrast to the dogmatic relativism of Holmes and Posner, Epstein rightly affirms that we have no choice but to appeal to common sense and ordinary experience in making moral and political judgments. They are the inescapable foundation of a humane system of liberty and law. Pragmatists such as Posner confuse realism with a “cruel form of moral skepticism” and go much too far in affirming the absolute flexibility of moral judgments. Against the dominant historicism of the age, Epstein does not hesitate to affirm that “boundaries of space and time do not block the free movement of moral discourse across” or within communities. Against cultural relativism, he defends the reality of a moral consensus across societies and history. No “culture” has ever defended the absurd proposition that killing, force, and fraud are choiceworthy in and of themselves. These otherwise illicit deeds must be justified before the bars of conscience and the law. Epstein goes so far as to criticize the arguments used in favor of abortion on demand as incompatible with “traditional moral justifications” and as unpersuasive on face value. “The utter dependence of the infant on the mother points to an increased duty of care, not to an increased right to repel or abandon another person.” Such judgments surely require great courage in an intellectual climate where the morality of “choice” is simply taken for granted by intellectual and legal elites.

Epstein’s defense of individual “autonomy” as the indispensable foundation of the free society therefore does not make him insensitive to traditional moral justifications. But he does not always help himself make his case. For example, he shows little evidence of having thought through the problematic implications of an appeal to human autonomy or to what Bertrand de Jouvenel called the “philosopher’s dream” known as the “state of nature.” Too often human autonomy is understood to entail an amoral right of “self-ownership” unbeholden to the moral law or to any intrinsic limitations on self-expression. Epstein shows little to no awareness of this difficulty. He unfortunately relies on philosophical categories that imply the debilitating skepticism he rightly argues is incompatible with true liberalism.

Because Epstein’s entry into political philosophy is through economic and legal theory, he tends to conceive of state authority in an exclusively negative light. While, for instance, he justifiably faults the welfare state for undermining limited government and for failing to deliver on its promises of alleviating poverty, his hostility keeps him from providing a fuller account of its origins and (perhaps necessary) place in the liberal order. A more balanced approach is taken by Pierre Manent, who has persuasively argued that some version of the welfare state is built into the very logic of political representation in free societies, which are continuously animated by an imperfect compromise between a destabilizing drive toward individual “autonomy” and an ordering principle of political “command.” Of course, if these “political interventions” are unlimited, they risk undermining the morality of liberalism and weakening the productive engines of a capitalist economy. Yet Epstein goes too far in his exclusive focus on abstract individual rights, including economic liberties, at the expense of the self-government of a democratic people. In light of the inherent complexities of democratic capitalism, Irving Kristol’s more moderate position—according to which prudent liberal statecraft involves limiting rather than abolishing the welfare state—is a more sensible one.

Only in the brief conclusion to the book are citizenship and self-government taken up as explicit themes. There Epstein concedes that “legal and political institutions can only go so far,” that “enlightened statesmen,” an “informed public,” as well as “an informed and deep set of business, political, and intellectual elites” are crucial to the flourishing of a self-confident liberal society. Epstein is thus forced in the end to concede that the classical liberal order depends upon a moral framework that it has difficulty articulating and that it sometimes actively undermines. While we should be grateful to Epstein for highlighting the complex ties that bind skepticism and liberty in the modern world, at the same time, his noble failure teaches us that philosophical liberalism is incapable of doing full justice to the goods that are necessary to sustain a free society. As Tocqueville explained with the greatest penetration, liberal democracy is far richer than the theory that is used to justify it. That is a valuable insight for every season.

Daniel J. Mahoney is Chairman of the Political Science department at Assumption College in Worcester, Massachusetts. He is presently completing a book on the political thought of Bertrand de Jouvenel and (with Edward E. Ericson, Jr.) is editing an anthology of the writings of Aleksandr Solzhenitsyn.