Epstein's Takings (2)

Takings mostly sets out Epstein's alternative constitutional property rights doctrine, but it starts and ends with more philosophical musings. The worst part (unfortuantely) is right at the beginning. Epstein identifies what I would consider the least.persuasive.normative.principle ever.

Following Hobbes and Locke, he says the state is justified because -- without it -- we would be in a state of war-of-all-against-all. We're better off in a regime of civil peace. Nothing new there. Epstein gets original when he claims that the surplus caused by going from anarchy to order should be distribute proportionately to the holdings people would have under anarchy:

What can the state demand of the individual citizen whom it both governs and represents? The simplest way to present the problem is to draw two pies...

The first of these pies represents the situation in a world without effecitve government control. Each individual is endowed (according to the natural rights tradition) with certain individual rights. Yet the value of these rights in a state of nature is low because some individuals continually try to take that which by right belongs to others...

The larger pie indicates the gains that are possible from poltical orgainzation. The outer ring represents the total social gains, while the divided lines indicate the proportion of the gain received by each individual member. The implicit normative limit upon the use of political power is that it should preserve the relative entitlements among the members of the group, both in the formation of the social order and in its operation.

In other words if the ratio of the value of a person's entitlements under political organization to the value of their entitlements under a Hobbesian state of nature should be constant. The better off you would do in civil disorder, the better off you should do in a world with government.

There are multiple objections to this principle. It wouldn't be true of a libertarian night watchman state, since that kind of state would put a premium on entrepenurial talent, as opposed to the ability to use weaponry and motivate teenage thugs, which would be more useful in civil disorder. Not that this is an objection to the night watchman state -- the principle itself is just nuts.

If Epstein's book stayed this silly, it wouldn't be worth reviewing. But when Epstein turns to legal doctrine, he grabs ahold of a crucial difficulty with the post-New Deal understanding of property rights...