Randy E. Barnett is one of our most
important contemporary defenders of a free society. Trained as a legal scholar
but working at the intersection of law, political philosophy, constitutional
theory, and economics, Barnett has developed a comprehensive moral and
institutional justification for liberty that draws upon natural law, natural
rights, individual sovereignty, and the evolutionary benefits of social order.
Unlike many economists who defend capitalism primarily on grounds of
efficiency, or philosophers who rely exclusively on consequentialist arguments,
Barnett seeks to demonstrate that a free society is both morally justified and
practically necessary because it provides the legal and institutional framework
within which persons can pursue flourishing lives according to their own
judgments.
His most systematic statement of this position appears in The Structure of Liberty: Justice and the Rule of Law (1998 and 2014), supplemented by numerous articles and essays, additional books, and by the collection, A Life for Liberty: The Making of an American Originalist (2024). This recent memoir reveals how his thinking has evolved, particularly his insistence that libertarianism must incorporate a robust natural law ethics alongside its familiar natural rights framework. Across these works, Barnett develops a theory of justice rooted in natural law and natural rights, while simultaneously explaining how decentralized social institutions, private property, voluntary exchange, and constitutional limits on government create the conditions necessary for peaceful social cooperation. In his writings he has developed an architectural, function-based paradigm for a free society.
What makes Barnett especially significant is that he bridges several intellectual traditions that are often viewed as distinct: classical liberalism, natural rights theory, constitutional originalism, Austrian and public choice economics, and evolutionary accounts of social order. His work also bears important similarities to the neo-Aristotelian liberalism of Douglas B. Rasmussen and Douglas J. Den Uyl that they call Individualistic Perfectionism. Although Barnett’s theoretical foundations differ in important respects from their perfectionist ethics, both approaches ultimately converge in their defense of liberty, limited government, and the moral significance of individual self-direction. This essay explores Barnett’s philosophical case for a free society, examining his diagnosis of the “three problems” of knowledge, interest, and power, his proposed “liberal conception of justice,” and his provocative argument for a polycentric constitutional order. It then considers the compatibility between Barnett’s natural law libertarianism and the ideas of Rasmussen and Den Uyl, a compatibility that suggests a promising convergence between two of the best contemporary defenses of liberty.
The Natural Law Foundation
What distinguishes Barnett’s project from much libertarian writing is his explicit and systematic appeal to natural law. While many libertarians take individual rights as given axioms or derive them from Kantian or utilitarian premises, Barnett follows a different path. He adopts a “given‑if‑then” method: “Given that the nature of human beings and the world in which they live is X, if we want them to achieve Y, then we ought to do Z”. The “X” here is the empirical reality of human nature and the scarcity and uncertainty of the external world; the “Y” is the pursuit of “happiness, peace, and prosperity” in social life. On this foundation, Barnett builds a normative edifice that aims to be both objective and practical.
Barnett is careful to distinguish between natural law ethics and natural rights. “Whereas natural law ethics assesses the propriety of individual conduct,” he writes, “natural rights assesses the propriety or justice of the use of force or coercion by others”. Ethics tells us how to live a good life; rights tell us what we may rightfully do to one another—and what we may not do. This distinction is central to Barnett’s political theory, for it allows him to defend a legal order that protects negative liberty without prescribing any particular conception of the good life. The state’s proper role is to secure the conditions under which individuals can peacefully pursue their own happiness, not to enforce the moral perfection of its citizens.
The Three
Problems of Social Interaction
Barnett’s argument for a free society proceeds by identifying three pervasive problems that arise when human beings interact under conditions of scarcity and uncertainty. These problems, he contends, must be solved for any society to enable its members to pursue happiness in peace.
The problem of knowledge is the first and most fundamental. Each individual possesses unique, local, and personal knowledge about his own situation, needs, and opportunities. No central planner—and no judge or legislator—can ever acquire all the information necessary to allocate resources efficiently or to direct individual conduct. The only social order that can harness this dispersed knowledge is one that respects freedom of contract and private property, allowing individuals to act on their own information and adjust to changing circumstances through market prices and voluntary exchange.
The problem of interest acknowledges that each person is primarily self‑interested. While this self‑interest can be a source of social cooperation, it also creates conflicts. Barnett argues that decentralized property rights coordinate self‑interested behavior by channeling it into productive, mutually beneficial exchanges. When individuals own the fruits of their labor, they have a powerful incentive to use resources efficiently and to respect the similar rights of others.
The problem of power is the most directly political. Whoever holds the authority to enforce the law—to punish wrongdoers and compel restitution—will be tempted to abuse that power for his own benefit. As Barnett puts it, “given that those with the power to impose punishments will be partial to their own interests, the power to punish or to use force to compel restitution is likely to be abused”. This problem is acute in any legal system, but it is especially dangerous when the state enjoys a monopoly on coercion. Barnett’s solution is not simply to limit government through written constitutions and separation of powers, but to question the necessity of any centralized, monopolistic enforcement institution at all.
The Liberal
Conception of Justice
From these three problems, Barnett derives five elements of what he calls the liberal conception of justice:
1. Property rights – rights to
acquire, possess, use, and dispose of scarce physical resources.
2. The right to first possession –
the rule that property is initially acquired by the first occupant or user,
subject to the equal rights of others.
3. Freedom of contract – consent is
both necessary (freedom from contract) and sufficient (freedom to contract) to
transfer alienable property rights.
4. Restitution – one who violates
the rights of another must compensate the victim.
5. Self‑defense – the right to use proportionate force to protect one’s person or property against imminent violation.
These five rights, Barnett argues, are not arbitrary constructs but are required by the very logic of social cooperation under the conditions of knowledge, interest, and power. They provide a structure for liberty that distinguishes it from mere license—that is, from the unconstrained freedom to do whatever one pleases regardless of its impact on others.
Liberty,
Natural Rights, and Individual Sovereignty
At the core of Barnett’s philosophy lies
the idea of individual sovereignty. Every person possesses moral jurisdiction
over his or her own life. Human beings are not resources to be used for
collective ends, nor are they merely instruments of social welfare. Rather,
they are autonomous agents capable of reasoning, choosing, and pursuing
purposes of their own.
Barnett’s natural rights theory begins
with a practical problem: how can social cooperation occur among millions of
diverse persons who possess different goals, values, beliefs, and aspirations?
Human beings inevitably come into conflict because resources are scarce and because
individuals seek to pursue different projects. The fundamental purpose of
rights is to solve this problem by establishing jurisdictional boundaries that
identify what each person may control and what others must respect.
Natural rights therefore function as
moral and legal boundaries. They identify domains within which individuals may
exercise discretion without interference from others. Rights to life, liberty,
property, and contract are not arbitrary social conventions; they emerge from
the need to facilitate peaceful coexistence among free and equal persons.
For Barnett, rights are not primarily
instruments for achieving collective welfare. Rather, they establish a
framework within which people can pursue their own conceptions of the good
life. This emphasis distinguishes his theory from utilitarian approaches that
justify liberty merely because it produces desirable consequences.
Barnett argues that a society that
systematically violates individual rights cannot be morally justified, even if
government officials claim to act in pursuit of beneficial social outcomes.
Respect for rights reflects respect for persons as self-governing agents.
The
Problem of Knowledge and Social Coordination
A central theme in Barnett’s work is the
problem of knowledge. Like classical liberals such as Friedrich A. Hayek,
Barnett emphasizes that knowledge is dispersed throughout society. No single
person or institution possesses enough information to direct economic and
social life effectively.
Each individual possesses unique
knowledge about his or her circumstances, preferences, opportunities, talents,
and goals. Social systems that rely upon centralized planning inevitably fail
because decision-makers lack access to the information necessary for rational
coordination.
Barnett therefore views liberty not
merely as a moral principle but also as an epistemic necessity. Freedom allows
individuals to act upon local knowledge and to discover new opportunities
through experimentation. Markets, civil associations, and voluntary
institutions function as mechanisms for coordinating dispersed information.
This insight helps explain why Barnett
defends private property and contractual freedom. Property rights establish
stable expectations about resource ownership. Contract law allows individuals
to coordinate plans and exchange information through voluntary agreements.
Market prices communicate information that no central planner could ever fully
possess. The free society thus emerges not merely as a morally attractive ideal
but as a practical solution to the problem of social knowledge.
The Structure of Liberty and the Problem of Social
Order
Barnett’s most influential contribution
appears in The Structure of Liberty. The book begins with a fundamental
question: what legal and political institutions are necessary to enable people
to coexist peacefully while pursuing their diverse ends?
Barnett rejects the assumption that
society requires extensive centralized control. Instead, he argues that social
order can emerge spontaneously when appropriate legal rules exist.
His analysis draws upon insights from
economics, evolutionary theory, and legal philosophy. Human beings continuously
face coordination problems. Institutions evolve because they help solve these
problems. Rules concerning property, contract, torts, and criminal law develop
because they facilitate cooperation and reduce conflict.
Barnett describes a free society as a
framework of rules rather than a blueprint for outcomes. Justice does not
require that government produce particular patterns of wealth, happiness, or
equality. Rather, justice requires the maintenance of legal institutions that
enable individuals to pursue their own goals peacefully. The legal order should
therefore focus on protecting rights and enforcing voluntary agreements rather
than directing economic activity or redistributing resources.
The
Presumption of Liberty
Perhaps Barnett’s most famous
contribution is the concept of the “presumption of liberty.” According to this
principle, individual freedom should be regarded as the default condition.
Government restrictions on liberty require justification rather than liberty
requiring justification. This reverses a common assumption in modern political
discourse. Too often, government action is presumed legitimate unless citizens
can prove otherwise. Barnett argues that the burden of proof should operate in
the opposite direction.
Because individuals possess natural
rights, coercive restrictions on their actions require compelling
justification. Government officials must demonstrate why limitations on liberty
are necessary and consistent with the protection of rights. The presumption of
liberty serves both moral and practical purposes. Morally, it reflects respect
for individual sovereignty. Practically, it recognizes the limitations of
governmental knowledge and the dangers of concentrated power.
This principle has become influential in
constitutional scholarship, particularly regarding judicial review and the
interpretation of constitutional rights.
He elevates the Ninth Amendment, which states that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people, as explicit constitutional proof that individual liberties are expansive and pre-political, whereas government powers are strictly enumerated and limited. For Barnett, constitutional originalism is not an exercise in historical antiquarianism; it is the practical, institutional technology required to enforce the very principles of justice and property needed to solve the problems of knowledge, interest, and power.
Natural
Law without Perfectionism
Barnett’s natural law theory differs
significantly from traditional Thomistic approaches. He does not attempt to
derive detailed moral obligations from a comprehensive account of human
flourishing. Instead, he develops what might be called a procedural natural law.
The purpose of legal institutions is not to ensure that people live virtuously.
Rather, it is to create conditions within which individuals may pursue their
own visions of the good.
Barnett recognizes that citizens will
disagree about religion, morality, lifestyle, and personal aspirations.
Political institutions must therefore remain neutral among competing
conceptions of the good life while protecting the rights of all persons. This
emphasis distinguishes Barnett from many classical natural law theorists who
seek to ground political institutions directly in substantive moral ideals.
Yet, Barnett does not embrace moral
relativism. He continues to maintain that objective moral principles exist and
that rights derive from human nature and the requirements of social
cooperation.
A Life for Liberty and the Evolution of Barnett’s Thought
Barnett’s recent memoir, A Life for Liberty: The Making of an American Originalist, offers a more personal window into his intellectual journey. But the memoir is more than autobiography. Barnett uses it to lay out five ways that libertarianism needs to be updated, a program that he has already begun to articulate in his scholarly writings. First, and most relevant for our purposes, is the need for natural law ethics in addition to natural rights. Barnett recognizes that a purely negative, rights‑based libertarianism is incomplete. It tells us what we may not do to each other, but it offers little guidance on how we should live our own lives. A fully developed libertarian theory, he now argues, must rest on a thicker ethical foundation—one that grounds rights in a conception of human flourishing while still respecting the limits of political authority. Second, is the need to distinguish between libertarian ideal theory and second-best libertarianism in a world of governments and competing nations. Third, is the need for a libertarian theory of citizenship and civil rights. Fourth, is the need to separate the public-private binary from the government-nongovernment binary. Fifth, is the need for a more refined theory of corporate power and corporate rights.
Constitutionalism
and the Protection of Liberty
Barnett’s defense of liberty extends
beyond moral philosophy into constitutional law. He argues that constitutional
limits on governmental power are essential for preserving freedom. The
Constitution should be understood as a mechanism for constraining political
actors rather than empowering them to pursue expansive social objectives. His
theory of originalism seeks to recover the Constitution’s role as a protector
of liberty. Constitutional interpretation should focus on the original public
meaning of legal texts because stable rules reduce opportunities for arbitrary
governmental power.
Barnett frequently argues that modern
constitutional jurisprudence has allowed excessive expansion of state
authority. Judicial deference to legislative action has weakened protections
for individual rights and economic liberty. A proper constitutional order, in
his view, should reestablish meaningful limits on governmental power while
strengthening protections for individual freedom.
The Polycentric Constitutional Order
The most radical, and most controversial, aspect of Barnett’s Structure of Liberty is his defense of what he calls a “polycentric constitutional order.” In such an order, the traditional state monopoly on law enforcement is replaced by a competitive market in legal services. Private courts and private police agencies would operate alongside one another, their decisions enforced through a network of contractual agreements and a background system of restitution. Barnett is not an anarchist in the sense of rejecting all rules or all coercion. Rather, he believes that a market‑based, decentralized system of legal provision is the only one that can adequately address the problem of power. Constitutional constraints on government have repeatedly failed to prevent “enforcement abuse”—the use of power for improper purposes. A polycentric order, by contrast, would harness competitive pressures to keep legal services responsive, efficient, and rights‑respecting.
Not all readers have been persuaded. Many classical liberals and libertarians remain “minarchists’, insisting that a minimal state is both necessary and legitimate. But even critics acknowledge the power of Barnett’s analysis. The debate over polycentricism continues, but Barnett’s formulation of the problem of power has permanently altered the terms of that debate.
Compatibility with Neo‑Aristotelian Liberalism
Barnett’s project intersects with the work of two prominent neo‑Aristotelian philosophers, Douglas B. Rasmussen and Douglas J. Den Uyl. In their influential book Norms of Liberty, Rasmussen and Den Uyl advance a defense of liberalism that is explicitly grounded in an Aristotelian ethics of human flourishing. They argue for construing individual rights as “metanormative principles”—principles that establish the political and legal conditions under which moral conduct can take place, without themselves dictating the content of that conduct. The state’s proper role is to protect the “right to liberty” understood as the right to be self‑directed, to pursue one’s own flourishing in one’s own way, provided one respects the equal rights of others.
The parallels with Barnett’s framework are striking. Both start from a naturalistic ethical foundation: Barnett from a “given‑if‑then” analysis of human nature, Rasmussen and Den Uyl from an Aristotelian conception of the human good as an objective, inclusive, individualized, agent-relative, self‑directed, and social activity. Both distinguish sharply between the normative principles that guide individual conduct (ethics) and the metanormative principles that structure the legal order (rights). And both conclude that the political‑legal order must be non‑perfectionist—it must not attempt to promote or enforce any particular conception of human flourishing, even though such a conception underpins the theory itself.
The compatibility is not merely theoretical. Barnett and Rasmussen have co‑authored an article titled “The Right to Liberty in a Good Society,” in which they explore how a “Constitution of Civic Virtue” might contribute to a flourishing social order. The very existence of this collaboration suggests that Barnett finds the neo‑Aristotelian framework congenial to his own natural law libertarianism. When Barnett urges libertarians to embrace natural‑law foundations, the one he recommends is that developed by Rasmussen and Den Uyl.
One important potential point of tension is that Barnett’s polycentric constitutional order is more radical than the minimal state that Rasmussen and Den Uyl defend. There are some additional differences. Barnett begins with the problem of social order and develops rights as solutions to coordination problems among diverse individuals. His emphasis is institutional and jurisprudential. Rasmussen and Den Uyl begin with a richer neo-Aristotelian account of ethics and human flourishing. Their theory is explicitly perfectionist in the sense that it seeks to identify the characteristics of an objectively flourishing human life. Barnett’s natural law is more procedural and political. Rasmussen and Den Uyl’s framework is more ethical and philosophical.
Yet, both sides share a commitment to the priority of liberty as a political value, a rejection of state perfectionism, and a belief that a naturalistic ethical foundation is compatible with, and indeed necessary for, a robust defense of individual freedom. Like Barnett, they reject utilitarianism, collectivism, and political paternalism. They also defend natural rights, limited government, and the moral significance of individual self-direction. Both approaches recognize that human flourishing is highly individualized. There is no single blueprint for the good life. People pursue flourishing through diverse projects, relationships, careers, and commitments.
Barnett provides a powerful account of
why liberty is necessary for social cooperation and legal order. Rasmussen and
Den Uyl provide a deeper account of why liberty matters for human flourishing
and moral development. Taken together, the theories offer both institutional
and ethical justifications for a free society. Barnett explains how liberty
works and Rasmussen and Den Uyl explain why liberty is valuable for the
flourishing person.
Conclusion
Randy Barnett’s case for a free society is one of the most ambitious and intellectually rigorous contributions to contemporary libertarian thought. By grounding his theory in natural law and focusing on the practical problems of knowledge, interest, and power, he has provided a framework that is both principled and realistic. His distinction between natural law ethics and natural rights allows him to defend a legal order that protects negative liberty without collapsing into moral skepticism. And his recent call for a fuller integration of natural law ethics suggests an ongoing evolution that may bring his work even closer to the neo‑Aristotelian liberalism of thinkers like Rasmussen and Den Uyl.
The compatibility between Barnett and the neo‑Aristotelian tradition is more than a footnote to contemporary theory. It points toward a possible synthesis that could strengthen the defense of liberty against its critics on both the left and the right. By drawing on the resources of natural law, classical liberalism, and Aristotelian ethics, such a synthesis would offer a unified vision of human flourishing and political justice—one that respects the diversity of individual pursuits while insisting on the universal principles that make peaceful cooperation possible. In an age of increasing political polarization and ideological fragmentation, that vision is more needed than ever.
Randy Barnett has developed one of the most complete contemporary defenses of a free society. Grounded in natural law, natural rights, and individual sovereignty, his philosophy presents liberty as both a moral imperative and a practical necessity. Through his theory of the presumption of liberty, his analysis of social coordination, and his defense of constitutional constraints on governmental power, Barnett offers a comprehensive framework for understanding the institutions of a free society.
His work demonstrates that liberty is
not merely an economic arrangement or a political preference. It is a moral and
legal framework that enables individuals to pursue their own purposes while
cooperating peacefully with others. Rights, property, markets, and
constitutional limits emerge as interconnected institutions that facilitate
social order among diverse persons.
Moreover, Barnett’s theory is highly
compatible with the Individualistic Perfectionism of Rasmussen and Den Uyl.
Although they begin from different philosophical starting points, these three
thinkers converge on the conclusion that human beings flourish best within a
social order characterized by liberty, voluntary cooperation, secure rights,
and limited government. Together, their work represents a compelling
contemporary statement of the classical liberal ideal: a society in which free
and responsible persons are able to direct their own lives within a framework
of justice and mutual respect.
References
Barnett, Randy E. 1998 and 2014. The Structure of Liberty:
Justice and the Rule of Law. Oxford University Press.
Barnett, Randy E. and Rasmussen, Douglas B. 2001. “The Right to Liberty in a Good Society”. Fordham Law Review.
Barnett, Randy E. 2004. Restoring the Lost Constitution: The
Presumption of Liberty. Princeton University Press.
Barnett, Randy E. 2016. Our Republican Constitution: Securing
the Liberty and Sovereignty of We the People. Broadside Books.
Barnett, Randy E. 2024. A Life for Liberty: The Making of an
American Originalist. Encounter Books.
Benson, Bruce L. 2000. “Review of The
Structure of Liberty”. Cato Journal 20(2), 271-275.
Den Uyl, Douglas J. and Rasmussen, Douglas B. 2016. The Perfectionist Turn: From Metanorms to Metaethics. Edinburgh University Press.
Hayek, Friedrich A. 1973-1979. Law, Legislation and Liberty. University of Chicago Press,
Rasmussen, Douglas B., and Den Uyl,
Douglas J. 2005. Norms of Liberty: A Perfectionist Basis for
Non-Perfectionist Politics. Pennsylvania
State University Press.
Other essays by Ed
Younkins on this site:
Younkins,
Edward W. (2025) “What Contribution did David L.
Norton Make to our Understanding of Ethical Individualism?” Freedom and Flourishing. January 18, 2025.
Younkins, Edward W. (2025) “How can dialectics help us to defend
liberty?” Freedom
and Flourishing. July 8, 2025.
Younkins, Edward W. (2025) “How can Austrian Economics be
reconciled with the Neo-Aristotelian philosophy of Freedom and Flourishing?” Freedom and Flourishing. October 24, 2025.
Younkins, Edward W. (2025) “Can Polarized Moral Politics be
Bridged by a Neo-Aristotelian Philosophy of Freedom and Flourishing?” Freedom and
Flourishing. December 13, 2025.
Younkins, Edward W. (2026) “Does Humanomics Need a Moral Anchor?” Freedom and Flourishing. January 22,
2026.
Younkins, Edward W. (2026) “Is
Character Education Compatible With Individualistic Perfectionism?” Freedom and Flourishing. February 27, 2026.
Younkins, Edward W. (2026) “Are Spontaneous Order and neo-Aristotelian Arguments for a Free Society Compatible?” Freedom and Flourishing. March 19, 2026.
Younkins, Edward W. (2026) “Are Spinoza’s Philosophy and Neo-Aristotelian Philosophies of Freedom and Flourishing Compatible?” Freedom and Flourishing. June 4, 2026.
No comments:
Post a Comment