Design for Liberty: Private Property, Public Administration, and the Rule of Law (Harvard University Press, 2011) by Richard A. Epstein has been the subject of much discussion and deservedly so. Richard Epstein is probably the most brilliant legal mind in America. Like Robert Nozick and many other great minds, Richard Epstein grew up in Brooklyn. (A large number of US Nobel Prize winners grew up in The Bronx, NY.) I first encountered Epstein’s writing while I was a vice-president of the Cato Institute in San Francisco when it published a reprint of Richard Epstein’s A Theory of Strict Liability: Toward a Reformation of Tort Law (San Francisco, Cato Paper, 1979), a paper I recommend to anyone who has not read it. Soon afterwards, I encountered Epstein at an Institute for Humane Studies Law and Liberty directed symposium of the Liberty Fund at the Law School of the University of San Diego. Among the participants were Henry Babcock Veatch, Shirley Letwin, Roger Pilon, Randy Barnett and Epstein, all of whom made valuable contributions. What stood out for me was Epstein’s grasp of Roman Law. After graduating Columbia University (then the best university in US) and before attending Yale Law School, Epstein spent two years studying Roman Law at Oxford University. Epstein has a high regard for the Roman law of torts.
I had been a long time member of the Columbia University Faculty Seminar on the History of Legal and Political Thought with several leading lights in Roman Law. But it had not been explained that the Civil Code or Justinian’s Roman law was a summary of the original Roman law, which evolved over centuries from the opinions of judicial experts and judges (praetors). In contrast to the straitjacket of Justinian’s Code, original Roman law was similar to English Common Law, which evolved from the decisions of judges. (See Bruno Leoni, Freedom and the Law (Liberty Fund).) Additionally, Epstein explained the emergence of the Roman law merchant from the decisions of the praetor who decided cases involving foreign merchants drawing on the best legal norms of the many civilizations in the Roman world. Suffused with the Stoic conception of a universal human nature, the praetor’s decisions became the basis of the Law of Nature and the Law of Nations.
Epstein has continued to publish important books on law addressed to a general reading public; mainly they are critical of the direction to Statism and restriction on individual liberty. Design for Liberty continues that tradition of criticism of the growth of judicial decisions increasing government control over lives, property and enterprise. He seeks to set forth a basic jurisprudence and constitutional foundation. I found his thoughtful analysis to be more lenient to powers of government than some of his earlier writings. But after accepting wider powers of government, he is critical of the advantage taken of them by judges and federal agencies to build forts of controls and regulations of lives, property and enterprise. Epstein’s critiques of expanded government powers against individual liberty and property are excellent, but it is hard to see the basis of his analysis in the wide powers which he grants to government.