I am looking forward to reading Richard Epstein's forthcoming The Classical Liberal Constitution. Epstein is among that dwindling circle of adepts and promoters of liberty who realise the importance of the state for freedom.
The state is not only NOT a necessary evil, it IS a necessary good without which meaningful forms of freedom could neither have developed historically nor could they exist in their advanced fashion today.
It is a sad state of affairs that there are only few liberals (European sense of the word) who are able to speak of the state's constitutive role in a regime of freedom in an unselfconscious way, that is: unaffected by the social pressure exerted by libertarian political correctness which has use for the state as a satanic bogeyman alone.
A sound understanding of the way in which the state forms an integral part of liberty is of the essence in order to understand, defend, and enhance freedom in the modern world.
Therefore, one of the deplorable shortcomings of (the attitude of many in) the freedom movement is an unwillingness to give up the comfortable habit of demonising the state across-the-board for the demanding task of understanding the role of politics and the state in achieving and sustaining the advanced stage of freedom that the privileged population of some 25 countries in the world enjoy, while the rest of mankind languishes in a condition characterised either by insufficiently developed governmental services, or by the exclusion of the vast majority from proper governmental services, of which much is to be learned from Hernando de Soto in his The Mystery of Capital. Why Capitalism Triumphs in the West and Fails Everywhere Else (see also below the brief video clip featuring de Soto).
Writes Richard Epstein:
Under the classical liberal constitution, maintaining a free and open market for both capital and labor is an essential government function, which resonates in the explicit guarantees with respect to contract, private property, and the freedom of speech and the press. These apparently disparate guarantees are all linked together by the common sentiment that the state must show a serious justification before it can limit their exercise. The class of justifications is not open-ended, and it never includes the anticompetitive and protectionist legislation that is routinely sustained based on a supposed need to correct abuses of the market that are unrelated to duress, fraud, and monopoly.
More specifically, the proper scope of the police power is tied to the two reasons that lead people to join a political compact in the first place. The first reason is to control the use of force and fraud. The second is to allow state taxation and coercion to facilitate gainful interactions among individuals who are unable by themselves to create the much needed public goods—including defending against foreign threats, maintaining domestic order at home, and providing the common infrastructure of roads and other public facilities—because of insuperable transaction costs. The simple but powerful notion that justifies these coercive actions is that all individuals receive just compensation from the state for their tax dollars in the form of a higher level of personal security and economic prosperity.
Personally, I am more consequentialist than Epstein, who, however, inspite of some tendency to argue from first principles, is nevertheless essentially a defender of liberty on pragmatic grounds - which is the only workable foundation on which to build a realistic committment to liberty.
Liberty is not good because it is right - by virtue of some unalterable set of presuppositions, first principles from which eternal truth emerges. Liberty is commendable (and right, if you wish) because it works so much better than anything else.
If however, you take this stance, you must be willing to put your thesis and indeed freedom herself to the test constantly. Which is fine with me; after all, exposure to relentless testing - that is how science works, that is how free markets work, that is how freedom and other high-performance spontaneous orders work.
It is through exacting trials and a long history of advances and reversals that freedom as we know and enjoy it in the West slowly emerged in the manner of a self-creating order - not as a the result of a human author. Only where the state evolved to bring about institutions sophisticated enough to support the rule of law for the broad population do we witness the unprecedented levels of freedom characteristic of some countries in the West today.
Of course, to the staunchly state-hating libertarian these are words of infamy. For them to acknowledge the role of the state in a free society is the same as dishonourably endorsing the many problems that accompany the fundamentally ambivalent set of relations and institutions subsumed under the terms government or state.
We are here dealing with a stance even more questionable than the one taken by him who hates life as all the bad things that ever occur happen exclusively to those who live. You are free to decide that life is to be hated - even for that reason. You are not entitled to argue that the state is to be hated since it is - in principle and under all conceivable circumstances - incompatible with freedom; that is demonstrably wrong.
And if the state is imperfect - as is any form of attainable freedom - than for the same reason that your nose is woefully imperfect as it cannot, say, by rubbing it and wishing hard, be used to fly you from Nebraska to Germany - it simply has not evolved to that level of performance.
And that is the problem with rationalistic arguments for liberty from first principles: inward looking with a misplaced presumption of the need for axiomatic consistency, such reasoning is naturally ahistoric, necessarily oblivious to empirical evidence and to the very nature of liberty as a product of natural growth.
The source of the problem is that two incompatible strands of thought continue to inhere in liberalism. On the one hand, liberalism is fiercely anti-rationalistic in that it discovered and depends on the evolutionary paradigm (Hume, Smith, Ferguson), the possibility of self-creating order; on the other hand, there are seminal and evergreen authors to be found in the liberal tradition who insist on a rationalistic justification of liberalism, a pristine grounding supposed to be impeccably precise, conclusive, and irrefutable (as in Locke's watering down of Thomistic rationalism), offering a grand pedestal for the liberal - if he fancies it - from which to look down on the obdurate and uninitiated.
Yet, as any form of rationalism, liberal rationalism leads to dogmatism and intolerance, to figments of overblown black-and-whiteness, and hence, at the end of the day, it is utterly unliberal. (See also Richman's Credo.)
Thus, I consider it a formidable defect of the liberty movement that large sections of it are incapable of comprehending what liberty depends upon for billions of people around the world, and especially why most of mankind has little freedom, while others have so much more of her. Most people in the privileged countries hardly understand just how free they are and why, including - dare I say, shamefully - many libertarians.
Recommending less or even no state to the people of the Third World is not unlike - and probably even more dangerous than - selling them misanthropic green policy visions that extol the moral glory of accepting a lot less energy at considerably higher costs.