Two Rights of Free Speech

ANDREI MARMOR

RATIO JURIS

Abstract: My main argument in this paper is that the right to freedom of expression is not a single right, complex as it may be, but spans two separate rights that I label the right to speak and the right to hear. Roughly, the right to speak stands for the right of a person to express freely whatever they wish to communicate to some other persons or to the public at large. The right to hear stands for the right to have free and unfettered access to any kind of content that has been communicated by others. The right to speak and the right to hear are two separate rights, grounded in different kinds of interests. I try to show that this division of rights and their respective rationales can be utilized to explain how we think about some of the limits of the right to freedom of expression, particularly in the context of conflicts between the right to speak and the right to hear, conflicts that are rather pervasive. I also argue, though perhaps less conclusively, that in thinking about the limits of freedom of expression, an exclusive focus on the harm principle would be misguided. There is no reason to deny that speech is often harmful, sometimes very much so, but the prevention of harm is not sufficient to justify legal prohibition, at least not in this case.

Grotius on Property and the Right of Necessity

DENNIS KLIMCHUK

JOURNAL OF THE HISTORY OF PHILOSOPHY

Abstract: It is widely held that in situations of peril, it is permissible to use another’s property without her permission if that is the only way to save oneself from serious harm, but that if one damages or consumes that property, one ought to compensate its owner. However, this idea—that there is what is commonly called ‘the right of necessity’—has proven surprisingly difficult to justify. According to Grotius, the right of necessity issues from a constraint imposed by natural law on the positive law of private property. I defend an interpretation of Grotius’s account of property and the right of necessity against some recent sympathetic readers, and show how he escapes a seemingly telling criticism from Pufendorf.

Barriers to prosperity: the harmful impact of entry regulations on income inequality

DUSTIN CHAMBERS, PATRICK A. MCLAUGHLIN, LAURA STANLEY

PUBLIC CHOICE

Abstract: Entry regulations, including fees, permits and licenses, can make it prohibitively difficult for low-income individuals to establish footholds in many industries, even at the entry-level. As such, these regulations increase income inequality by either preventing access to higher paying professions or imposing costs on individuals choosing to enter illegally and provide unlicensed services. To estimate this relationship empirically, we combine entry regulations data from the World Bank’s Doing Business Index with various measures of income inequality, including Gini coefficients and income shares to form a panel of 115 countries. We find that countries with more stringent entry regulations tend to experience more income inequality. In countries with average inequality, increasing the number of procedures required to start a new business by one standard deviation is associated with a 7.2% increase in the share of income accruing to the top decile of earners, and a 12.9% increase in the overall Gini coefficient. This result is robust to the measure of inequality, startup regulations, and potential endogeneity. We conclude by offering several policy recommendations designed to minimize the adverse effects of entry regulations.

A short history of constitutional liberalism in America

CONSTITUTIONAL POLITICAL ECONOMY

ROGER D. CONGLETON

Abstract: American liberalism emerged before the most famous European liberal intellectuals put their pens to paper. It was grounded partly on liberal ideas that were in the air before those works were written, but mostly on the attractive communities generated by liberal institutions and policies. American liberalism is empirically, rather than theoretically, grounded. This paper uses excerpts from colonial and constitutional documents to demonstrate the long history of liberal institutions in the territories that became the United States. American liberalism is an evolutionary rather than an intellectual phenomenon.

The Golden Thread of Religious Liberty: Comparing the Thought of John Locke and James Madison

KEVIN VANCE

OXFORD JOURNAL OF LAW AND RELIGION, Volume 6, Issue 2

Abstract: The views of the American founders on religious liberty provide fertile ground for a range of different interpretations of the extent of legal protections for religious liberty and how religious liberty is justified. Although John Locke’s arguments for religious liberty were influential on the American founders, several founders, including James Madison, departed from or developed Locke’s arguments in a way that emphasizes how a human being’s religious obligations can limit the power of civil government. Contemporary religious liberty scholars have emphasized Madison’s apparent departure from Locke in order to help justify legal exemptions for religious practices. Although Locke did not directly link the duty of human beings to worship God according to one’s conscience to the right of religious liberty, I argue that each part of Madison’s argument is already present in Locke.

Trade, Power, and Political Economy: Reason vs. Ideology in Edward Stringham’s Private Governance

RICHARD WAGNER

THE REVIEW OF AUSTRIAN ECONOMICS

Abstract: In Private Governance: Creating Order in Economic and Social Life, Edward Stringham explains that private ordering is sufficient to secure full exploitation of gains from trade within a society. After describing the logic of Stringham’s claim on behalf of private ordering, the remainder of this essay examines an enigma that Stringham’s argument entails: private ordering is sufficient for social coordination and yet public ordering is ubiquitous. The exploitation of gains from trade might offer a useful ideology, but this provides but an incomplete basis for a theory of society. In this respect, societies are rife with antagonism and envy, though these often manifest themselves ideologically as claims about justice and fairness. Politics goes where the money is; private ordering reveals targets that public ordering subsequently exploits. The challenge for political economy is to integrate the autonomy of economizing action with the autonomy of political action, for these dual autonomies provide the crucible out of which emerges the material of political economy. Stringham has deepened our appreciation of what private governance can accomplish, but much unfinished analytical work confronts theorists of political economy.

Private Governance and the three biases of political philosophy

JASON BRENNAN

THE REVIEW OF AUSTRIAN ECONOMICS

Abstract: Private Governance shows that philosophers, political and legal theorists, and social scientists mistakenly believe in legal centralism, the view that order in the world depends upon and is made possible by state law. In fact, most governance not only happens to be private, but must be private. This paper extends Edward Stringham’s argument by claiming that philosophers tend to suffer from three biases. Diffidence bias means they are overly pessimistic about people’s willingness and ability to cooperate without state enforcement. Statism bias means the overestimate the degree to which cooperation is secured by the state. Guarantee bias means they overestimate the value and need for legal guarantees.