The Structure of Liberty: Justice and the Rule of Law

Randy E. Barnett
an excerpt from...

Chapter Six
The Third-Order Problem of Knowledge

In the previous chapters, we saw how the first-order problem of dispersed personal and local knowledge is addressed by a conception of justice with three distinct dimensions. First is the dimension of several property: the jurisdiction or right to decide questions of resource use is decentralized to the level of individuals and voluntary associations - those who have access to personal and local knowledge. Second is the dimension of freedom of contract: (a) permit persons to consent to transfer their rights to other (freedom to contract) and (b) require the manifested consent of the rights-holder for all interpersonal rights-transfers (freedom from contract). Third, permit persons to acquire unowned resources by first possessing them. We then say how the second-order problem of providing ex ante knowledge about justice to affected persons is handled by putting this message into a form consistent with principles associated with the rule of law, and how these formal requirements, in turn, influence the substance of justice.

So far this discussion of justice and the rule of law has been extremely abstract. I have offered no specific precepts that are to be used to decide the actual contours of persons' jurisdiction or the precise circumstances that reflect consent. The formal requirements of the rule of law described earlier are a bit more specific, but to be applicable to real cases these tenets require still further specification. How are such concrete precepts developed? This is the "third-order problem of knowledge":

The third-order problem of knowledge is the need to determine specific action-guiding precepts that are consistent with both the requirements of justice and of the rule of law.

One way to accomplish this is to examine more closely the natural rights of several property, freedom of contract, first possession, and the rule of law principles discussed in Chapter 5 and to try to deduce form these rights and principles more specific precepts that can be used to address the first-order and second-order problems of knowledge. We can call this the deductive or theoretical method in so far as specific precepts are being logically deduced form more general principles and from a theoretical understanding of the social problems we are trying to solve. Although I do believe it is possible to generate in this way precepts that are considerably more specific than those presented thus far, at some point the ability to specify legal rules or principles in this theoretical manner is limited. Understanding these limits is important to appreciate the need for decision making processes that I have yet to consider.

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