[Editor’s Note: This essay is part of a symposium on John Tomasi’s Free Market Fairness. For an introduction to the symposium, click here. For a list of all posts in the symposium, click here.]

Elizabeth Anderson accepts the central thesis of Free Market Fairness: the set of basic economic liberties should be thickened beyond the orthodox high liberal set. Nonetheless, Anderson believes that this thickened set of basic economic liberties should be heavily regulated. In this post, I reconstruct and examine Anderson’s argument regarding economic liberty in the workplace.

Anderson’s argument:

II. THAT: the economic rules of workplaces within market democracy should be heavily regulated.

II.1) The exercise of some categories of basic liberty, unless that exercise is heavily regulated, will create structures of hierarchy in domains within which structures of hierarchy are objectionable.

II.2) The private ownership rights of market democracy, unless heavily regulated, will create structures of hierarchy within the workplace.

II.3) The workplace is an area in which structures of hierarchy are objectionable.

II.4) Workplaces within market democracy should be heavily regulated.

As before, let’s stipulate throughout that should be “heavily regulated” means should be more heavily regulated than in my classical liberal scheme. I have no settled view about I.1), so I grant it arguendo. But what of II.2)?

According to II.2), the scheme of economic liberties I defend in FMF, unless more heavily regulated than I would allow, will create objectionable hierarchies in the workplace. Now, it may appear that Anderson and I have a significant disagreement here. Indeed, to borrow a phrase, in her post Anderson “reserves special opprobrium” for my suggestion that individual workers have rights to decide for themselves many of the terms and conditions on which they are willing to work—including questions about wages, hours to be worked, and many but not all questions about conditions (for example, market democracy allows workplaces to be regulated for safety in some cases). By contrast, Anderson denies that workers have these rights. Instead, she argues that for extensive labor regulations, including regulations setting maximum hours and minimum wages and, apparently, much more.

Note: In his contribution to this symposium, Samuel Freeman suggests that I misunderstand labor regulations, such as those setting maximum hours. According to Freeman, “The restriction on hours is not a restriction on workers but on employers from exercising duress over workers.” Anderson appears to share this view. But when did we agree to evaluate regulations solely by considering the (alleged) intentions of the advocates of those regulations? Rules that limit work hours, whatever the intentions of their advocates, do restrict the ability of individual workers. After all, such workers may, for their own reasons, wish to work more hours than stipulated by the regulation.  A worker who wishes to work more than the mandated maximum may not have the opportunity to work more at his job because his employer may not be able to afford the mandatory overtime pay stipulated by the regulation. Or that hours-regulation may force that worker to apply for, commute to, and negotiate a schedule for some second job. So maximum hours rules clearly impinge upon the formal rights and liberties of working as I describe them in FMF. (Such regulations may also impinge on the economic rights of business owners, but I leave that aside.)

Now, Anderson says that without such restrictions and regulations, workplaces will become sites of tyranny and domination. She claims that entry-level workers in particular have few employment options. So employers can effectively compel such people to endure all manner of abuse in the workplace. Supervisors may prohibit workers from urinating during work hours, spy on them in the bathroom, forbid them from speaking foreign languages, fire them for their sexual orientation or their political beliefs, forbid them from complaining, and require that they wear certain kinds of clothing. Without heavy regulation, workplaces become psychologically and physically hazardous to the workers.

Of course, when Anderson claims that labor markets generate these bad effects she is making (broadly) empirical assertions. Some readers of this blog, no doubt, would reject Anderson’s reading of labor history and her description of the plight of contemporary wage-laborers in America. Some might point out that, in a competitive market, companies must compete against each other to hire and retain the most competent workforce. Further, there is some evidence that companies that do well in the long haul tend to be ones that think hard about ways to make the experience of work personally meaningful to their workers. And, even on the assumption that the interests of management is hostile to the physical and psychological well-being of their workers, the fact that workers have a right of exit puts a significant limit on how bad that alleged physical and psychological abuse in the workplace can be (a point many readers emphasize in the comments section to Anderson’s essay).

Fortunately, to assess my argument for economic liberty in Free Market Fairness, we have no need to settle such empirical debates. For in that book, I seek to answer a different kind of question. Abstracting from the complicated facts of particular societies, my hope is to identify the institutional forms that might best express the commitment of citizens to live together as free and equal self-governing agents. My main thesis, of course, is that market democratic regime-types—democratic laissez-faire and democratic limited government—express that moral commitment more completely and more attractively than do social democratic ones—liberal socialism and property-owning democracy. So my argument is an exercise of normative identification that is conducted at the level of ideal theory.

Of course, Anderson is free to object to my interpretation and application of ideal theory, the argument for which I set out carefully in my book (203-215). But Anderson has stated no such objection. So if we are to interpret Anderson’s critique to be assessing my arguments, her objections must be interpreted as running on the same level of abstraction on which my arguments run.

Viewed that way, however, it seems that Anderson and I agree yet again. After all, I can easily imagine sets of (historically possible) background conditions within which the individual liberties of working that I defend could in fact leave workers vulnerable to coercive abuses of the sorts that worry Anderson. Imagine, for example, an economy in a phase of long-term contraction, with a low base of capital, in which workers effectively have no choice but to keep their current job, no matter how nasty. It could happen. In such unfavorable background conditions, the market democratic regime types I defend, perhaps, might not realize the moral standard that I call free market fairness. Indeed, things might possibly even turn out as bad as what Anderson describes. But this is no objection to my view. Unfortunately, there may well be social conditions in which the lofty moral ideals of free market fairness cannot be achieved.

However, I can also imagine sets of (historically possible) background conditions within which the individual liberties of working that I defend would in fact not leave workers vulnerable. Instead those liberties would free them to live the fullest possible lives together, each according to his own values. Imagine, for example, an economy in a period of long-term expansion, with a large base of capital, in which workers can easily find work elsewhere if the terms and conditions of their current job no longer satisfy them. That could happen too. In such conditions, my market democratic regime types would realize all the moral requirements of free market fairness.

Now I suppose that Anderson could deny this. She might claim that market economies always lead to reduced capital accumulation and long-term economic contraction. Thus the right to decide for oneself how many hours to work could never be morally valuable to citizens. But such a claim seems highly implausible. And, anyhow, Anderson makes no such claim.

So, at the level of ideal theory, Anderson’s claims about existing working conditions in America do nothing to impugn my arguments for thick economic liberty.  Viewed through the lens of ideal theory, Anderson’s claims give us no reason to believe that the economic liberties of market democracy, unless heavily regulated, will create (read: will create even under the most favorable but realistically-possible background conditions) structures of hierarchy in the workplace.

However, there is a different way to interpret II.2). And this interpretation brings us to the heart of the matter. For this reading would indeed generate a split between Anderson and market democracy.

Anderson sometimes indicates her personal approval of workplace democracy. Within democratic workplace structures, workers directly make management decisions themselves, or elect representatives to serve as managers and supervisors.

According to II.2), recall, the private ownership rights of market democracy, unless heavily regulated, will create structures of hierarchy within the workplace. What if Anderson does more than personally admire democratic workplaces? What if she is so taken with that workplace form that she insists that every workplace must be structured that way? In non-democratic or “wage-labor” relations, let’s say, workplace managers are chosen (or promoted through the ranks) by owners and other superiors, rather than being elected by the workers to represent them. In such workplaces, the workers take their orders from the managers, but the managers do not take their orders from the workers. In a technical sense, at least, wage-labor relations are hierarchical. So perhaps the phrase “structures of domination” in II.2) refers to any workplace structure that is non-democratic.

Now, the market democratic regimes that I defend in FMF, even viewed through the lens of ideal theory, do indeed allow wage-labor (among other forms of workplace organization, including democratic ones). Interpreted this way then, I must accept premise II.2). The thick economic liberties of market democracy create structures of hierarchy in the workplace.

So it turns out that the entire weight of Anderson’s argument against market democracy falls on premise II.3). We must hold constant our interpretation of “structures of hierarchy” to mean (nondemocratic) wage-labor. So, to object to market democracy, Anderson must claim that non-democratic workplaces are objectionable. And the regulations that she must advocate are regulations that would forbid workplaces organized that way.  So, at the level of ideal theory, justice requires the prohibition of wage-labor. All workplaces must be democratically controlled.

Does Anderson really wish to defend this extreme thesis? It doesn’t look like it. Anderson writes: “I’m not arguing that workers intrinsically prefer “meaningful work” in workplace democracy, as social democrats suppose, over maximum pay, which Tomasi prefers.” She is referring here to the second main argument of FMF, where I defend an interpretation of the difference principle based on the idea that workers are more appropriately empowered by increases in their pay rather than by regulations imposing democratic work structures on them all (p 184-192). So that looks promising.

But in a footnote to that sentence, Anderson observes that workers in Germany have a strong appetite for a say in management. She then says: “such preferences [presumably, whether to prefer higher pay or more workplace democracy] may be endogenous to the bundle of rights constitutive of the employment relation in a given country.” So she seems ambivalent.

Allow me to suggest that Anderson needs to decide.

Anderson opens her contribution to this symposium with the brave statement that she is willing to sign on to the new research program that I call market democracy. She then aggressively criticizes institutional features of market democracy. But, as I hope to have demonstrated, none of her arguments has traction against my market democratic proposal. So Anderson has no reason to jump ship. No reason, that is, unless Anderson is willing to assert that justice requires the prohibition of wage-labor.

If that is Anderson’s considered view, it seems unattractive. After all, the question here is not whether Anderson (or you, or I) would prefer to work in a democratic workplace. Nor is the question whether Anderson (or you, or I) think the lowest paid class of workers should prefer to work in places structured that way. The question is what respect for citizens requires in this area.

In Free Market Fairness, I argue that justice requires that our social institutions show respect for citizens as responsible authors of their own lives. Choosing whether to join a democratic workplace (that may offer lower pay) or a non-democratic workplace (where pay may be higher) seems to me a choice that we should seek to empower individual citizens to make for themselves. Democratic workplace requirements would deny workers a choice that many workers might reasonably make: namely, to choose a job that pays a higher wage rather one that offers the experience of democratic control. And many citizens might reasonably make that choice, not out of greed or moral stupidity, but as an expression of their own values and in pursuit of a life plan that is precious to them.

I will be sad if Elizabeth Anderson decides to jump off the market democratic ship. But there is only one idea in sight that could give her reason to do so. This is the idea that justice requires that we deny citizens the freedom to decide for themselves what type of workplace structure best accords with their deep values and life plans.  I would be sadder still if Anderson thinks liberalism requires so severe a restriction on the economic liberty of workers.

I reply next to Dierdre McCloskey on “Factual Free Market Fairness.”