Epstein’s Best of All Possible Worlds: The Rule of Law

Design for Liberty: Private Property, Public Administration, and the Rule of Law. Richard A. Epstein. Harvard, 2011. Pp ix, 233.

Richard Epstein is an intriguing combination of Candide and Mr. Micawber. Both characters maintain their optimism in a disaster-filled world. Candide is an optimist for theoretical reasons: “All is for the best in this best of all possible worlds” summarizes his understanding of science. So too Epstein: every plausible general social and political theory—utilitarianism, Kantianism, natural law, neoclassical economics—leads to the conclusion that that government is best which governs least, and through simple rules. Mr. Micawber is a sentimental optimist, whose motto is, “Something will turn up.” So too Epstein: despite the evidence, supported by public choice theory, that governments simply won’t govern least, and so won’t be best, Epstein seems confident that something will turn up, at least if people (unspecified, but apparently immune from the incentives on which public choice theory focuses) get their heads straight.

This Review begins with a summary of Epstein’s argument in Design for Liberty, which is a “plea [ ] to marry a set of strong property rights with a system of sound public administration” (p 7) coupled with an argument that, while strong property rights are possible both in principle and in practice, sound public administration is possible only in principle, not in practice. Part II offers some comments on the book’s style, arguing that it too often gets in the reader’s way. Part III examines a central feature of Epstein’s argument, that strong property rights can be embodied in a simple set of easily administrable rules and argues that his critique of the practical impossibility of sound administration applies equally to the set of rules creating strong property rights. Part IV discusses the political economy that underlies Epstein’s account of judicial doctrine, which in turn leads to a brief Conclusion that returns us to Candide and Mr. Micawber.