RECONSTRUCTING RICHARD EPSTEIN

[...] he is the conceptual mirror image of Ronald Dworkin, who views individual rights as constraining what otherwise appears to be a broadly utilitarian understanding of the common good.2 For Professor Epstein, under certain circumstances, utilitarian gains "trump" libertarian commitments.3 Professor Epstein's willingness to limit the reach of individual rights makes his theory of property substantially more plausible and durable than purer libertarian accounts, which are far too brittle to attract serious support among legal scholars. Professor Epstein frankly acknowledges that absolute fidelity to libertarian beliefs about the impermissibility of coercion yields the unacceptable conclusion that even the most minimal conception of the state is an impossibility.12 He deals with inevitable free-rider problems by permitting group coercion of individuals through a series of forced exchanges, which are themselves justifiable by virtue of the fact that the organized political life they make possible ensures that the coerced individual is better off than he would be in their absence. 13 A fuller theory of political obligation, he observes, requires that individual consent for political obligation yield to a principle that justifies the state's use of force so long as it both supplies compensation to the individual against whom coercion is used and offers them a fair division of the social surplus that is created by public action.\n (It seems that the number of possible unique end-points would become even more numerous once we acknowledge the multitude of possible states of affairs that would qualify as Pareto superior to the state of nature.) To recap, the move directly to the social welfare state from the state of nature satisfies the requirements of Professor Epstein's Paretian limitations on forced exchanges, but it no longer does if the laissez-faire intervenes.