William Galston and I seem to agree on at least one thing: that the proper enforcement strategy requires some assessment of the relative strengths and weaknesses of social and legal sanctions. We disagree, I believe, on how that weighing should be done. My basic proposition is that one is much more willing to require legal intervention to control the use of force and fraud than when both of these are absent. Viewed in that light it is useful to comment on three of his cases.

        First, I agree that false charges that lead to ostracism are a serious matter, and thus the law of defamation may well be available to assist persons, at least when there is a deliberate falsehood given under the pretense of sharing information with a close friend. But just because this legal remedy is available does not mean that sane people would choose to avail themselves of it. Galston speaks of the right to confront witnesses under fair procedures need not be a blessing, but can often be a curse: it gives the other side an opportunity to pry and to insinuate on the record in ways that are at least as painful as the social sanctions that the law of defamation seeks to displace, or at least supplement. The procedural safeguards of which Galston speaks are often far more distasteful than any set of social sanctions that even the fiendish could devise.

        Second, the threat of spousal abuse involves the use of force and I am very reluctant to think that social sanctions should suffice against a threat to life and limb. Hopefully these will be exerted to stop the practice or to prevent the recurrence, but they could easily fail. And as communities do become less close-knit, the legal sanctions have to be used against a supposed claim of family privilege.

        But, third, the employment relationship involves none of these perils, and the danger of state intervention is that it will upset the delicate balance of sanctions that are always in place, given the threat to quit and the reputational losses from unjust dismissal. State actions are not only blunt; they are often perverse, and one has to fear the switch from well-intentioned communitarian impulses to unbridled uses of state power. And today the state requires far more discrimination, often for dubious reasons, than it prevents. For jobs, for clubs, for housing developments, for charities, legal abrogation of the right to exclude is normally a fateful and mistaken step. In these cases the difference between the more libertarian and communitarian approaches are vivid indeed.
 

Richard A. Epstein