All Commentary
Tuesday, November 1, 1994

Book Review: Are There Too Many Lawyers? And Other Vexatious Questions by Joseph S. Fulda

Foundation for Economic Education • i993 • 121 pages • $14.95 paperback

In the title essay of this new collection, the author considers not merely whether we have “too many” lawyers, but what it is about law itself that makes it a different commodity than, say, shoes.

We wouldn’t normally worry about whether there were too many shoemakers on the market (so long as an overproduction of shoes isn’t being subsidized by the Shoe Ministry). But a proliferation of lawyers may signal a deeper problem: a problem with the legal system itself, with the license for abuse it permits certain participants, like plaintive plantiffs. As Fulda writes, “legal services are fundamentally different from other services, simply because lawyers must use the law—the State—to give plaintiffs the property of defendants. Today’s plaintiffs’ bar is expert at using the law to attain wealth by what Albert Jay Nock called ‘the political means’ rather than ‘the economic means’—i.e, by the redistribution of existing wealth, rather than the creation of new wealth.”

This kind of probing of essentials is, of course, what we expect from The Freeman, the journal from which most of these pieces are taken. The essays divide primarily into two sections: a review of the foundations of liberty and the libertarian psychology, and the practical application of individualist principles to current policy questions. A third section considers issues of “narrow ethics.”

Libertarian readers will be inclined to nod their heads in agreement for the most part over the basic theory. As usual, it’s when theory gets applied that the most evident disagreements between philosophical compatriots emerge.

For example, one can agree with Fulda’s view in “Why Are There So Many Social Issues?” that our schools should not be an arena for governmental mediation of conflicting educational values. Certainly all schools should be private, free-market entities, not a vast agglomerated public domain subject to coercively uniform standards. We really wouldn’t need to debate prayer in the schools if parents had real liberty to pick and choose among competitive schools with freely developed charters.

But . . . we do have a genuine problem now, which Fulda admits his perspective cannot “reach”; namely, what do we do about such value conflicts now, as they have been engendered and perpetuated within the existing public educational system? We can agree that the conflict may be insolvable under present circumstances, while yet noting it still needs to be dealt with. Do we tell parents, “Sorry, just keep squabbling until everything is privatized?” The courts have to make some kind of ruling when they get these cases, after all. A philosophy of individualism and freedom should be able to help us out here to some extent. Moreover, social issues tend to be a little more fundamental and persistent than I think Fulda allows for; the conflicts are not simply generated from scratch by the government’s involvement. They are often what provoked that involvement in the first place.

Probably the most controversial essay in the collection will be “Abortion: Is Pro-Choice a Libertarian Position?” This is an issue that has seen endless wrangling in all ideological camps. Fulda rebukes the “pro-choice” position for ignoring the truth that freedom of action entails responsibility for the consequences of one’s acts. And he calls abortion an “act of coercion,” a claim that has been less mildly asserted in other quarters. Now, granted, the right of freedom, if it is to remain coherent, must incorporate a ban on initiatory coercion against others. But the question is, which others? The strength of Fulda’s case against abortion as legally permissible rests, obviously, on the nature and status of the fetus during the various stages of pregnancy. Exploration of that key issue is missing here.

But enough of wrangling! This volume also includes an essay-review of Michael Levin’s Feminism and Freedom; helpful discussions of “freeloading” (externalities and all that), charity, scandals, and certain issues in higher education; and a brief essay on the hidden danger of getting too upright about “appearances of impropriety.”

These are bite-sized, lucid, often persuasive essays that are informed by a solid understanding of how freedom works and what is its moral justification. We can be grateful to FEE for publishing them under one roof, and to their author for the clarity of his insight. []

Mr. Brown is a free-lance writer.