capitalism

Posner, Richard A. (1939– ) 385
Critics of communitarianism claim, however, that there
are conceptual problems with denying some notion of individualism
because in advancing their views communitarians
are conducting themselves individualistically. They are
assuming that they have the right to voice their views, that
they need no permission from the community to disagree
with the community, which is, at least in large portions of
the West, individualistic.
Another source of support for the idea of positive liberty
is a deterministic view of human behavior, which is increasingly
popular. Those people who do not fare well may not
be regarded as having failed, but more as incapable of
doing what needs to be done for them to get ahead in their
lives. As John Rawls puts the matter, the assertion that we
“deserve the superior character that enables us to make the
effort to cultivate our talents is ...problematic; for such
character depends in good part upon fortunate family and
social circumstances in early life for which we can claim no
credit.” Thus, having more or less (or a higher or lower
quality) of what others have is of no moral significance, but
a matter of the various impersonal forces that shape a person’s
life. Hence, it may be inferred that all who are disadvantaged
are victims of circumstances and do not deserve
their lot. This view counters the conception of negative liberty
that libertarians embrace—namely, that once adult men
or women are free from interference from others, their
flourishing or lack thereof in life must be largely their own
achievement.
In any case, despite the attempt to dismiss the debate
between advocates of negative and positive liberty, the
issue appears to have staying power because political
philosophers will continue to affirm certain kinds of liberties
or rights for human beings. Which are the proper kind
is something that will remain both theoretically and practically
significant.
Libertarians embrace the view that only negative liberty
is consistent with a free society, believing as they do that
individual goals are attainable without involving government
and without mandating what libertarians deem to
amount to involuntary servitude from others. They support
this position from a variety of perspectives, but it is central
to all these that individual human beings are sovereign and
must not be used against their will by others, including the
government.
See also Constant, Benjamin; Freedom; Liberty in the Ancient
World; Rights, Individual; Welfare State
Further Readings
Berlin, Isaiah. Four Essays on Liberty. London: Oxford University
Press, 1969.
Constant, Benjamin. Political Writings. Biancamaria Fontana,
ed. and trans. Cambridge: Cambridge University Press, 1988.
TM
Conway, David. Classical Liberalism: The Unvanquished Ideal.
New York: St. Martin’s Press, 1995.
Mill, John Stuart. On Liberty. London: J. W. Parker and Son, 1859.
Narveson, Jan. The Libertarian Idea. Philadelphia: Temple
University Press, 1988.
Rousseau, Jean-Jacques. “The Social Contract” and Other Later
Political Writings. Victor Gourevitch, ed. Cambridge: Cambridge
University Press, 1997.
POSNER, RICHARD A. (1939– )
Richard A. Posner is a judge and a legal theorist. Posner
is a judge of the U.S. Court of Appeals for the Seventh
Circuit, a senior lecturer at the University of Chicago Law
School, and the leader of the modern law and economics
movement.
Posner held a variety of positions in the Johnson
administration and taught at Stanford University before
joining the Chicago faculty in 1969. At Chicago, he participated
in George Stigler’s famous Industrial Organization
Workshop, and he developed close ties with many members
of the economics department. He soon began using
the tools of neoclassical economics to analyze legal issues,
and in 1973, Posner published his textbook, Economic
Analysis of Law. That book has become a classic and is
now in its sixth edition.
In the opening chapter of Economic Analysis of Law,
Posner writes: “Many lawyers still think that economics is
the study of inflation, unemployment, business cycles, and
other mysterious macroeconomic phenomena remote from
the day-to-day concerns of the legal system. Actually, the
domain of economics is much broader.” Economics, he
argues, “is the science of rational choice in a world—our
world—in which resources are limited in relation to human
wants. The task of economics, so defined, is to explore the
implications of assuming that man is a rational maximizer
of his ends in life, his satisfactions—what we shall call his
‘self-interest.’ ” Such a statement may seem obvious to
most economists. However, as Posner notes, it will be quite
surprising to many students of the law, as will the implications
that follow from applying economics to legal issues.
Many legal theorists have charged that the law and economics
approach ignores issues of “justice.” But if one
equates justice with efficiency—as Posner often seems to
do—then such criticism is without merit. After all, efficiency
eliminates waste, and “in a world of scarce
resources waste should be regarded as immoral,” Posner
writes. From this viewpoint, a whole host of socially
disapproved—and currently unlawful actions—cannot
automatically be deemed unjust. Posner notes:
It is not obviously inefficient to allow suicide pacts; to
allow private discrimination on racial, religious, or sexual
grounds; to permit killing and eating the weakest passenger