Law and the Free Society

The New Right vs. the Constitution, by Stephen Macedo (rev. ed., Washington, D.C.: Cato Institute, 1988). A rights-oriented challenge to the jurisprudence of original intent, especially in the morally skeptical version of Robert Bork and Chief Justice William Rehnquist. Offers a "principled judicial activism" that would protect "civil" and "economic" liberties.

Law and Revolution: The Formation of the Western Legal Tradition, by Harold Berman (Cambridge, Mass.: Harvard University Press, 1983). See the discussion in the section on History.

Freedom and the Law, by Bruno Leoni (1961; 3d ed., Indianapolis: Liberty Press, 1991). An examination of the relationship between law and freedom by one of the early pioneers of the study of law and economics; shows how law emerges spontaneously from a common law legal process and why government-enacted legislation is incompatible with the free society and the market economy. The new edition includes valuable essays such as "The Law as Individual Claim" and "Voting versus the Market."

Takings: Private Property and the Right of Eminent Domain, by Richard Epstein (Cambridge, Mass.: Harvard University Press, 1985). See the discussion in the section on Property Rights above.

"Pursuing Justice in a Free Society: Part One - Power vs. Liberty; Part Two - Crime Prevention and the Legal Order," by Randy E. Barnett in Criminal Justice Ethics Summer/Fall 1985, Winter/Spring 1986. A detailed consideration of what rights we have, what form a legal system that protects rights should take, and how such a system would operate.

Economic Liberties and the Judiciary, ed. by James Dorn and Henry Manne (Fairfax, Va.: George Mason University Press, 1987). A collection of essays on the proper role of the judiciary in a free society, with special attention to the protection of economic rights.

The Law Merchant: The Evolution of Commercial Law, by Leon E. Trakman (Littleton, Colo.: Fred B. Rothman & Co., 1983). This is a very important study of the spontaneous evolution of commercial law, a system of law created outside of the state by merchants and founded on the principle of freedom of contract. The work traces the development and functioning of commercial law from the medieval merchant fairs up to contemporary international oil contracts.

The Rights Retained by the People, ed. by Randy E. Barnett, 2 vols. (Fairfax, Va.: George Mason University Press, 1989-93). The Ninth Amendment to the United States Constituion that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words, we have more rights than are enumerated in positive law. Barnett has assembled the best work on the natural rights background to the United States Constitution into two useful volumes of articles, essays, historical background materials, and more.

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