So far as I can tell from his reply, Sheldon Richman agrees with both of these propositions. He writes: "Thus some level of `interference' is consistent with the exercise of rights. Moral philosophy ventures out of its proper realm when it tries to specify the exact line between permissable and impermissable levels of interference." In other words, the pure form of the non-agression axiom is wrong, and the more complicated correct form does not tell us where to draw the line between what we are and are not permitted to do.
There remain, I think, two points of disagreement. First, Sheldon Richman apparently believes that I have rejected, or even that I think I have refuted, the idea of rights. He is mistaken. The article in question was excerpted from the new edition of my book The Machinery of Freedom, where (under the title "Problems") it forms the first in a three chapter sequence. The second chapter suggests various possible conclusions, and rejects that one. My conclusion is not that natural rights are wrong (although I do have serious doubts of claims, by Rand, Richman, or others, to have in some sense proved them) but that they are, at least at present, useless for answering certain questions, and that if one wishes to answer those questions one must therefor look elsewhere.
Second, Sheldon Richman seems to believe that, to solve those questions, "the proper discipline is ... property law." But the issues I raise in the article are not limited to property law--they include questions of criminal and tort law, and could easily have been expanded to include contracts, procedure, and perhaps even constitutional law. The proper discipline for discussing these issues is indeed the study of law--all of it.
But to say that the proper discipline is law still leaves open the question of how one ought to decide what the law should be--precisely the question I started with. His answer cannot be that we decide it from Moral Philosophy, since he has just agreed that Moral Philosophy cannot do it. My answer, explored in the third chapter of the sequence, is that we use economics--that we look for the legal rules that (very roughly stated) maximize the total of human happiness. My defense of that answer is not that economics gives the best imaginable answer to the questions we want to ask, merely that it gives the best answer we currently know how to find.
I should perhaps add, in closing, that this position is not original with me. The idea that law either should be or tends to be economically efficient, and the exploration of what legal rules are economically efficient, are central elements in the Economic Analysis of Law, arguably the most important, and almost certainly the most controversial, development in the legal scholarship of the past thirty years. Scholars in that field have been working through answers to just the sort of questions I raised in my article at least since 1960, when Ronald Coase published "The Problem of Social Cost," the article on which much of Law and Economics (and, incidentally, my chapter on the subject in "The Machinery of Freedom") is based.
Olin Fellow in Law and Economics
University of Chicago Law School
Published in Liberty Magazine, reprinted by permission