Society Asks Too Much of Law

May/​June 1995 • Policy Report

In his latest book, Simple Rules for a Complex World, Cato adjunct scholar Richard A. Epstein contends that society asks toomuch of the law. The resulting complexity, writes Epstein,“tends to place the power of decision in the hands of other peoplewho lack the necessary information and whose own self‐​interestleads them to use the information that they do have in sociallydestructive ways.” The book, published by Harvard UniversityPress and the Institute, proposes instead a short list of simplerules. “Simplicity,” Epstein writes, “is yet another argument in favor of strong private rights and limited government.” Epsteinprescribes six rules:

1. Individual are self‐​owners;
2. Individuals may acquire unappropriated property;
3. Individuals may make contracts with other people;
4. The law of tort shall redress violations of individuals such as murder, rape, theft, robbery, and fraud;
5. Private property may be violated only when there is overwhelming necessity;
6. Whenever government violates private property, whether by regulation or outright taking, it must compensate the owner.

For Epstein, those “simple rules” subsume mostconflicts. He shows how they apply to the environment, laborrelations, product liability, employment discrimination, andredistribution of wealth. Observance of Epstein’s rules wouldinvalidate most of the programs of the Progressive Era, the New Deal,and the Great Society.

Epstein notes that the job of law is not to promote virtue butrather to redress force and breaches of contract. The underlying principle,writes Epstein, is that “government works best when itestablishes the rules of the road, not when it seeks to determinethe composition of the traffic.” Epstein is James Parker HallDistinguished Service Professor of Law at the University ofChicago. His previous books include Takings, Forbidden Grounds,and Bargaining with the State.