LAW AS PHILOSOPHY?
In a recent Volokh Conspiracy post, Tyler Cowen wrote something about Richard Epstein's latest book that "scared" Matt Yglesias, appalled Matt's readers, and puzzled me. The money quote:
More generally, I think Richard's genius is to see/assert/argue that various problems in ethical and political philosophy are in fact best thought of as legal issues. I'm never sure if Richard, the consummate lawyer, is aware how revolutionary he is in this regard. The idea of reducing much of philosophy to law is shocking, if you think about it (well, it is shocking for us non-lawyers!), and it is one reason why he outrages some of his readers.
I know Richard, have read most of his books (but not his latest, which I recently bought), and have talked with him about his general project. Never have I concluded that he's trying to reduce ethical problems to law. I'd say he's trying to develop a consequentialist ethics and apply it to law. I'd also say that he believes that human beings have, through trial and error, discovered ethical ways to live and embodied them in the kinds of dispute-resolution rules expressed in common law.
But I decided to ask the man himself what he thought of Tyler's description of his work. Here is his response:
Obviously, praise is nice for a book that does not seem to have gotten all that much attention thus far. But I would put my stance somewhat differently. I don't worry much about the boundaries between disciplines. I only worry about arguments that seem to cohere on a given theme. The number of philosophers who have invented well established legal rules is very large; e.g. Ross and Nozick in recent times; Hume, Locke, Kant etc. Most of them are not first class lawyers so that they miss some key points about the issues in question. All I do is try to show how if you know the legal arguments well you can avoid the pitfalls and iron out the anomalies. The point here is to be sure that technical skill in law is brought to bear on problems that invite abstract speculation by folks who do not understand the infrastructure. Call it the academic principle of comparative advantage.
To draw your own conclusions, here are links to the trilogy that defines Richard's general philosophical project:
Skepticism and Freedom, his latest
Principles for a Free Society
Simple Rules for a Complex World
The books are not easy reading, but neither do they require a law degree.