[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.]

In his excellent book Free Market Fairness John Tomasi introduces a new idea that he labels “market democracy” and develops it in sensible ways.  To see what he has in mind, ask yourself why economic liberty gets such short shrift in modern liberal theories of justice.  In John Rawls’s theory, basic liberties get special protection, but the only economic liberties that qualify for this status are the right to own personal private property and the right to some freedom of occupational choice.[1. John Rawls, A Theory of Justice, revised edition (Cambridge, MA: Harvard University Press, 1971 and 1999); also John Rawls, Political Liberalism, expanded edition (New York: Columbia University Press, 1993, 1996, and 2005).] Entirely absent from the set of protected liberties are freedoms to start a private business enterprise, keep the profits one gains from successful enterprise, acquire private ownership of enterprise assets with security against expropriation of those assets by the state for its own purposes, and so on.  This downgrading of capitalist liberties strikes Tomasi as odd and objectionable.  This feature of modern philosophical liberalism is not an unintended side effect of focusing on other issues; this tradition prides itself on taking the high road that progressively frees our idea of a just social order from any necessary affirmation of private ownership of enterprise and free markets as anything except possibly useful instruments to the fair (in some sense equal) distribution of opportunities and resources we should be working to achieve.  Modern philosophical liberalism would be transformed if one amended it by giving capitalist liberty its rightful place.  The simple and elegant suggestion that John Tomasi makes is that we should be engaged in the hard intellectual labor of carrying out exactly that transformation.  This is the market democracy project in a nutshell.

There are two prongs to Tomasi’s hybrid proposal for reforming what he calls the tradition of “high liberalism.”  One is to make empirical claims backed by right-wing rhetoric.  The gist of this idea is that a lightly regulated capitalist free market economy with low taxation will boost economic growth and hence over the long run will advance the prospects of the least advantaged members of society to a greater extent than alternative social democratic policies.  The empirical issues here are evidently complex and tricky.  I set these issues to the side.  My own hunches about these factual matters  are very different from Tomasi’s, but no one should be interested in a philosopher’s armchair speculation on empirical matters.  Tomasi’s claims, worked into more precise form to be suitable for investigation, are to be settled by social science inquiry.  (Some would say the social science evidence on some large conjectures on which Tomasi relies is already available to us, and decisively rejects these conjectures.)

The second prong in Tomasi’s critique of the high liberal tradition involves reassessing the intrinsic value and deontological weight of the economic liberties to acquire and own private property, contract with others on any mutually agreeable terms, and retain ownership rights until one voluntarily transfers it to others or passes it along to one’s chosen heirs. These economic liberties are central to the operation of capitalist market economies as they currently function.  Tomasi opines that these liberties are intrinsically worthy and merit protection and respect quite independently of any good consequences that might flow from protecting and respecting them.  To put this suggestion to use, Tomasi advances the idea that the Rawlsian principles of justice, taken as exemplary of the high liberal tradition, are to be amended by inserting some right of capitalist economic liberty into the set of basic liberties, the full protection of which is the top priority requirement of social justice.  This is a simple but groundbreaking suggestion, provocative and interesting.  I find it difficult to assess pending further specification by Tomasi of just what exactly he means to include in the idea of the economic liberty that is to figure in the set of basic liberties.  There are many significantly different possible interpretations of the idea, and so far Tomasi has provided only a vague general characterization.

One comment worth making immediately is that whatever capitalist economic liberty is inserted into the set of Rawlsian basic liberties will surely enormously curtail the implications of the egalitarian difference principle that Tomasi also wants to affirm in his hybrid vision.  The difference principle dictates that within the limits imposed by the higher-priority justice requirements of equal basic liberties for all and fair equality of opportunity, we should set economic institutions so that over the long run they make the economic resources that go to the worst off members of society as large as possible.  The principles of justice are nested, with the requirement of equal basic liberty for all taking strict lexical priority over lower-ranked principles.  For Rawls, this means no restricting of free speech or curtailing of rights of democratic citizenship in order to boost anyone’s economic prospects.  Now let us follow the Tomasi suggestion of inserting capitalist economic liberty into the set of basic liberties that trumps all other justice demands.   What this amounts to depends on how Tomasi wants us to conceive of capitalist economic liberty, but any robust entrenchment of capitalist entrepreneurial rights or rights of shareholders in business firms or rights to retain the profit from voluntary contractual arrangements that impose no wrongful spillover costs on nonconsenting others will greatly crimp the writ of the difference principle in realistically possible circumstances.  Tomasi justice will then hold that no infringement of Donald Trump’s basic liberties including his capitalist economic liberty, however slight, is morally permissible, no matter how great the gain that would accrue to worse off members of society.  From any remotely liberal egalitarian philosophical perspective, Tomasi’s revised Rawlsianism looks to be a wolf in sheep’s clothing.

Perhaps the comments above are misleading.  Perhaps Tomasi does not want his doctrine of market democracy to be harnessed too tightly to the Rawlsian framework of principles that he uses to characterize it.   But then we need more detailed specification of his proposal before we can assess it.

Details aside, I am strongly inclined to believe that the proposal to entrench any notion of economic liberty in the form of private ownership of the means of production into a set of morally privileged basic liberties merits rejection.  Economic assets passed along from generation to generation are tools for the improvement of the condition of humanity.  From the standpoint of fundamental moral principle, it is wrong to see property ownership relations as fundamental rights. Saying this is not to deny that the liberties afforded by capitalist property ownership are valuable opportunities for individual fulfillment.  Being a CEO of a large private corporation, like being a top elected or appointed government official, gives one a unique opportunity for exercise of creativity and leadership and complex administrative liberties.  But from the standpoint of moral principle one cannot acquire private ownership rights to these roles; they involve stewardship, and institutional arrangements that should be set to maximize the fulfillment of our moral goals rightly interpreted.

Tomasi’s affirmation of market democracy criticizes the high liberal tradition for downgrading capitalist economic liberties.  His hybrid proposal also criticizes the classical liberal tradition as represented by such authors as Friedrich Hayek and Richard Epstein.  Tomasi admires the institutional wisdom he sees embedded in this tradition of thought, but rejects its aggregative, quasi-utilitarian moral foundations.  Borrowing a leaf from the writings of the high liberal tradition, in the spirit of John Rawls and Thomas Nagel and Ronald Dworkin and Thomas Scanlon, Tomasi suggests that at the foundational level we consider how free and equal rational and moral persons would conceive of social relations that enable all of them to live together in a democratic, cooperative community.  The foundational moral principles we embrace for the regulation of institutions and individual conduct should express the aspiration of free and equal moral persons to be good neighbors to each other and enable each to live genuinely self-authored lives of their own choosing.  In a broadly Kantian spirit we seek to find principles that none could reasonably reject as a basis for living together.  In taking this high liberal deliberative perspective on selection of moral principles, Tomasi adds the twist that (1) we should put economic liberty as envisaged in the classical liberal tradition in its proper privileged place and (2) that the principles we would then choose as moral foundations for the regulation of society will broadly support the institutions of free-market capitalism as seen in the classical liberal tradition.  In very rough terms, his hybrid market democracy consists of high liberal moral foundations (amended by respect for economic liberty) yoked to the institutional wisdom of the classical liberal tradition.

As Tomasi notes, this is a research program for moral philosophy, not a finished product.   I wish him well in these efforts. However, his mix-and-match strategy fusing elements in the right-wing and left-wing traditions highlights a quite different research program that would follow the same strategy but embrace exactly the elements from each tradition that he rejects.  The idea would be to work with the consequentialist and welfarist moral foundations of the classical liberal traditions, suitably amended, and seek to derive from these foundations institutional proposals in the spirit of the social democratic tradition.   In a slogan: Not John Rawls libertarianism but rather Richard Epstein liberal social democracy.

Here’s the lightest sketch of the latter path, which I favor and which Tomasi decisively rejects.  Very briefly, the problem with utilitarianism is neither its maximizing consequentialist structure nor its basic idea that what ultimately matters morally is the quality of each individual human life.  The problem is (1) utilitarianism’s aggregative maximizing function gives no weight to egalitarian concerns, but we should be favoring the worse off, and (2) the maximand for a consequentialist view should not be interpreted in desire satisfaction or hedonic terms but in perfectionist terms, that is to say the goal is to gain for individual persons the several objectively valuable components of a fulfilled life—friendship, love, achievement, knowledge, enjoyment, and so on.  Embracing perfectionist moral foundations is not rejecting the project of conceiving how free and equal moral and rational persons, people like us, would choose principles that enable their flourishing as autonomous individuals and as good neighbors.  To my mind the two projects dovetail.  The idea would then be to fuse the perfectionist welfarist consequentialism of J. S. Mill (and Derek Parfit) with twentieth-century social science and with the wisdom and lore accumulated through the historical experiences of modern social democratic regimes.  Tomasi notes Mill’s perfectionism, but recoils from it.  In my view Tomasi’s mistake here is to be too Rawlsian.

To my mind Tomasi orients his responses to modern liberalism too closely around his responses to the writings of John Rawls.  Tomasi pretty much takes philosophical high liberalism to be the thought of Rawls as interpreted by Samuel Freeman.  Doing this is understandable but mistaken.  Tomasi mentions the luck egalitarian tradition (as represented in the writings of G. A. Cohen, Ronald Dworkin, John Roemer, Larry Temkin, a stage of Thomas Nagel, and others), but does not seriously engage with it.  This lack of engagement shows up in his beliefs about what is living and what is dead in the right-wing authors he takes as mentors.  But the luck egalitarian doctrine develops a line of thought on individual responsibility and justice that hits both Rawls and many right-wing treatments of individual responsibility.  Against Rawls, the luck egalitarian holds that what we owe other people who are well off or badly off importantly varies depending on the degree to which they can reasonably be held morally responsible for their condition.  Against right-wingers, the generic luck egalitarian insight is that having a poor endowment of natural talent and other favorable personal traits can render one less than fully responsible for poor choices one makes and poor ambitions one forms, so many people who would be seen by someone like Charles Murray as belonging to the herd of undeserving poor are, viewed through the lens of a fine-grained account of responsibility, better viewed as deserving and highly eligible for a helping hand.  In fact the best luck egalitarian account may hold that the “herd of undeserving poor” has virtually no members.  Part of the mistake involved in his being too Rawlsian is that Tomasi misses some sharp and sound criticisms of right-wing views.