Symposium on Free Market Fairness, Academic Philosophy

Freedom and the Moral Powers

[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.]

Samuel Freeman is skeptical that economic liberties can be basic. He writes, “for rights and liberties to be basic in Rawls’s sense, they must at least be necessary to the exercise and development of the moral powers of all citizens.” Call this the moral powers justification for basic liberty. The moral powers are 1) the capacity to pursue and revise a view about the good life and 2) the capacity to recognize others’ interest in doing the same, and so to abide by fair terms of cooperation with them. Freeman writes further, “I remain at a loss to understand why John thinks that thick capitalist economic rights (e.g. the right of unlimited accumulation of wealth) are necessary preconditions for everyone’s effectively exercising their moral powers.”  But with that justification in hand, can any liberties can qualify as basic?

Consider speech. Is a thick conception of free speech, constitutionally protected, really necessary to the exercise and development of the moral powers for all citizens? Aside from journalists, artists, and academics, I don’t think most people exercise thick rights of freedom of speech, including ‘political speech, and scientific, artistic, literary, and cultural expression’ but they seem nevertheless to retain the capacity for self-authorship, to pursue a conception of the good, and the ability to participate in fair institutions. So too with the other basic liberties—none of them are necessary for the adequate development or effective exercise of the moral powers.

In any case, I don’t think that this problem undermines the central thesis of Free Market Fairness because I don’t think that the moral powers justification is the best argument for thick economic liberties, or any liberties. Like Arneson, I think that Tomasi is too Rawlsian. But unlike Arneson, who proposes that Tomasi should be more consequentialist (understood in a particular way,) by ‘too Rawlsian’ I mean that Tomasi’s and Freeman’s strategy for justifying basic liberties is too consequentialist.

BHL’s and Rawlsian liberals alike should abandon the moral powers justification for liberty and argue for the basic status of liberties, economic and otherwise, on their own merits. Though it is not a maximizing doctrine, the moral powers justification instructs us to seek institutions that promote citizens’ capacities to some level of adequacy, and in this way it is still a kind of ‘consequentialism of capacities.’ Rather, I say we should respect the choices that people autonomously make, even if those choices fail to promote, or even undermine, their capacities.

To see how the two views differ, imagine that freedom of speech, it turned out, was not required for the adequate development of citizens’ moral powers. On the moral powers justification, strong protections for free speech would then not be a necessary condition for a just society because it would not be necessary for the development of citizens’ capacities.  But I disagree. Speech is important in its own right, not because it is instrumental to the development of our capacities.

Sometimes the moral powers justification even seems internally inconsistent. Here’s why. Other liberties are sometimes considered less important, like the freedom to ride in a car without a seatbelt or the freedom to use recreational drugs, or to sign a slave contract. For this reason, Rawlsian liberals like Freeman are comfortable with limits to those freedoms in the name of the moral powers. The moral powers justification thereby licenses paternalistic restrictions on any non-basic liberties.

But once we notice that interference with the ‘unimportant liberties’ is allowed for the sake of the moral powers, what’s holding liberals back from interfering with the important, basic liberties for the sake of our moral powers? Why, for example, was Rawls an advocate of euthanasia rights, even though choosing to die effectively destroys all of one’s capacities? It must be that the basic liberties are important in their own right, not for the role they play in the adequate development of our capacities. But if so, then why were they initially justified by way of the moral powers?

Another reason to reject the moral powers justification is that this interpretation of the argument for basic rights is vulnerable to the same critiques that Rawls himself raises against consequentialist theories. The distribution of liberty shouldn’t depend on whether a liberty plays a role in the promotion of anything, be it our capacities or our happiness. The Kantian elements of Tomasi and Rawls hold that liberty and personal autonomy are not primarily justified because they are instrumental to other values, yet the moral powers justification is incompatible with that principle.

All of which is to say that the best arguments for the basic status of economic liberty, or any liberty, should swing free of freedom’s impact on our moral powers. Rather, a better strategy is to show that economic liberty is important, either subjectively or objectively, in the same way that liberties like speech and association are important. Or, to show that excessive interference in economic activities like contract or productive property ownership is as burdensome and wrong as excessive interference with other important kinds of projects like association and private property ownership. That is, whatever makes the traditional list of basic liberties distinctively important in their own right, will also distinguish a range of economic activities.

PS:  For those who are interested in this topic, in this working paper and in his other research, Ryan Davis makes some similar points  in favor of the view that liberty is required by respect for persons, not for the role it plays in promoting happiness or autonomous capacities.

  • Two things:

    One, it seems to me that given the way Rawls defines the moral powers, a person’s moral powers are nothing more (nor less) than that person’s capacity for autonomy.  One of them is the capacity to set and pursue ends (or a “conception of the good”), and the other is the capacity to abide by fair terms of cooperation.  What is that if not the capacity for autonomy?

    If that’s right, then I don’t know that it makes sense to say that, on Rawls’s view, autonomy is important because it’s “instrumental” to the development of the moral powers, when your moral powers *just are* your capacity for autonomy. 

    Second, and related to that, the idea that there could be a non-consequentialist justification of basic liberties seems impossible to me.  What would that even look like?  If it’s not their consequences, either for human autonomy or welfare or virtue or whatever, that justifies them, what is it?

    What makes freedom of speech important, presumably, is that it’s central to a person’s ability to exercise her autonomy (=moral powers, in Rawls-speak).  That’s consequentialism right there.  The only alternative I can come up with is that it’s just self-evidently important (like a “natural” right).  But that’s just another way of saying “because I said so,” isn’t it?

    Anyway if you could say something about what a non-consequentialist justification of a basic liberty would look like, I’d be very interested to hear it.

    • Al Bundy

      Isn’t justifying liberty consequentially because it enables “the capacity of autonomy” circular in a sense? liberty = freedom from coercion, capacity of autonomy = ability to act freely, so freedom from coercion is justified because it enables the ability to act freely (ie free of coercion). hmmm…

      unless your taking autonomy to mean freedom of will, so freedom from coercion is justified because it enables the ability to will freely. But this doesn’t seem right because surely we can will freely even in the most coercive of environments.

      If this justification of liberty is circular then it seems not so different than a natural right justification and vulnerable to the same criticism of relying on “because i said so.”

    • Jessica Flanigan

       Hi Chad, This is a good comment. I don’t think that the only alternative is the natural rights framework. Ryan’s paper at the bottom sketches a view where you can not be a consequentialist in justifying freedom but I agree that there is always the danger that whenever you justify liberty for the sake of any other value you start to look, in some very weak sense, like a consequentialist.

      Here are three justifications for freedom that I like.
      1) Korsgaard-style magic: I know that this view has a lot of problems, but I think Korsgaard was on to something when she made the argument that when we act we confer value on our projects, and thus we must recognize our own value as a source of value, and in so dong, when we notice that other people are able to confer value on their ends, that they must be sources of value as well. I know, it sounds like magic or a sham, but nevertheless, I maintain the hope that that story will work.
      2) Darwall-type stuff: Something about the nature of moral address requires that we recognize others as the source of claims against our interference, warranting respect. Another argument that tries to get freedom out of a concept we already have, but I still like it.
      3) An interest-based account- You might just think that we have an incredibly strong interest in freedom, either a subjective or objective interest (I am more sympathetic to the subjective interest account but no one else likes it). Unlike consequentialist arguments that would have us promote that interest, the interest ought to be respected. Now, maybe you think in some sense that is still consequentialist because freedom is still justified on behalf of some other value (interests?) but I think it’s importantly non-consequentialist at least in that it doesn’t call for the promotion of the value.

      Now, all these are kinda hand-wavy I admit, but that’s a start for how I think you can justify rights against interference without consequentialism or natural rights.

      • Aeon Skoble
      • OK, I think I understand you better now…  You think we should respect rather than promote autonomy, the difference being (as I understand you) that when we, say, force somebody to wear a seatbelt while driving, we might be “promoting” their future autonomy but we are not respecting their present autonomy because we’re forcing them to do something they’d maybe rather not do.

        I would agree with you that nothing much hangs on whether we want to call respect-based views “consequentialist” or not.

        But I also think you exaggerate the difference between the “respect” view and Rawls’s view.  Do you take it to be an implication of the respect view that no interferences with liberty are justified at all (except perhaps those which protect the like liberty of others)?  I think Darwall and Korsgaard would be surprised to learn this.

        It seems to me that even a respect view is going to have to distinguish “basic” from “non-basic” liberties.  That is, it will have to distinguish those liberties that can be restricted for the sake of other social values from those that cannot.  And presumably it will have to do that through some account of which exercises of liberty are central to what it is to be an autonomous agent (and thus deserve absolute respect) and which are less central (and therefore deserve, say, prima facie respect).  The structure of argument looks the same as Rawls’s to me.  

        Paternalism might be one difference, but even Rawls’s view is uncomfortable with all but the weakest forms of paternalism.  Any form of paternalism that interferes with agents’ abilities to make decisions about ends/values is ruled out on his view.  (This is Rawls’s argument for euthanasia, after all). 

  • MARK_D_FRIEDMAN

    Jessica,
    Excellent analysis, which I wholeheartedly endorse. And, I especially like your conclusion: “Rather, I say we should respect the choices that people autonomously make, even if those choices fail to promote, or even undermine, their capacities.” Respect for moral autonomy is, in my view, an essential aspect of the natural rights tradition.  My only comment is that coercion is the antithesis of such deference, and I find it hard to square your position here with your support of UBI. This proposal entails the coercion of taxpayers to support the lifetsyle choices of those capable of supporting themselves, but who nevertheless prefer to live off the UBI rather than work.  Under natural rights principles, coercion might be justified to save the innocent needy, but not the indolent surfer-dude.

    • I share your skepticism about a UBI (for somewhat different reasons); however see also my comment on the previous post about whether there might be ways to fund a UBI that would be more justifiable, at least politically.

      • MARK_D_FRIEDMAN

        Frank,
        You have an interesting and clever idea, and one that would certainly appeal to most egalitarians. But not, I suspect, to most libertarians, because we question the whole idea of “public lands” or “public broadcast spectrum,” etc. How did this property become “public”? How did the state gain its title? Why was this land not made available for homesteading? This is a whole ‘nother can of worms that opens up issues too complex to resolve here, but certainly worth thinking about.

        •  Thanks for the feedback, Mark. I can think of two other problems with this idea: First, as a practical matter I think the amount of money that could be raised through this mechanism would be one or two orders of magnitude too small to provide a reasonable UBI. (For example, providing a UBI of just $5,000 to 100 million people would require $500B of funding.)

          Second, there’s a slippery slope concern, perhaps more theoretical but an issue nonetheless: If the proposal is to provide a UBI by raising money from the leasing of public resources (or similar mechanisms), one obvious way to make the UBI bigger is to declare more and more resources to be “public”, taking them through eminent domain, etc.

          Having said that, the U.S. does have public lands, with various rights related to such lands leased to private parties, broadcast spectrum that gets auctioned, and so on, and I don’t see that changing any time soon. One proposal would be to take funds raised through such measures and return them directly to taxpayers, as opposed to having them vanish into the general fund. Providing visibility of the funds directly to taxpayers might also lessen the probability of such rights being given away to politically-connected individuals or corporations at much less than fair market value. I’m not sure if there’s a political constituency for such a proposal though.

    • Jessica Flanigan

       I think we agree here. At the level of moral theory, I am ambivalent about, though sympathetic to the idea that there are only negative duties. That said, I think that if we live in any state that coerces people without their consent, it’s coercive policies should not be so burdensome that people will starve unless they work.

      It seems to me that the many people who oppose the UBI are operating with a premise that the indolent surfer dude is undeserving of any assistance because he could work and make money given the property rules that a market society enforces. But I don’t think he ‘deserves’ to live in a society with those rules any more than the beneficiaries of those rules, people with a taste for work, deserve their good fortune to live in a market society.

      Plausibly if you are a lazy surfer then socialism would be better for you, so if you favor a market society (as I do) then you need to be able to tell the lazy surfer that though you coerce him by enforcing rules that are bad for folks like him, he is at least able to essentially ‘opt out’ of those rules by not participating in the market society. Maybe we can think of the UBI as a kind of exemption, in the same way that libertarians favor exemptions for other separatist groups who choose to opt out of public goods (including a property system). We give them the room to do that in acknowledgement of the fact that the initial coercion is itself unjustified without their consent.

      Anyhow, that was kinda rambling, but the main idea is that we can agree that coercion is always wrong, but we should acknowledge that the property system itself, which benefits the workers and not the surfer, is coercive just like the taxes that benefit the surfer.

      • But the property system need not be coercive. If it is not, the surfer still cannot eat unless he works, or unless he is living on resources that have been previously justly acquired (including charitable donations).

        And if the existing property system is coercive, adding another coercion (of taxpayers to provide funds for the layabout) just makes things worse.

        • Jessica Flanigan

           Agreed, it need not be coercive, that’s why I’m an anarchist. But short of a set of private security firms or a DPA or some small scale cooperative community system of property enforcement, where everyone consents, any property system that has not secured the consent of those who live under it, any system of monetary policy and taxation, is coercive. So, roughly, it’s not like the UBI is ‘adding another coercion’ it’s more like it’s coercing taxpayers instead of the surfer. Or that’s the idea in any case….

          • I disagree. It is a mistake to think that any absence of consent means that enforcement of property rights is coercive.  There will always be thieves, murderers, rapists, etc. These people obviously do not consent to respect other people’s property. Yet preventing them from performing their criminal acts, or punishing them and securing compensation from them when they do, is an essential part of securing non-coercive property rights.  It is not coercive to restrain someone who does not consent to be restrained, when what you are restraining him from doing is a violation of property rights (so long as the restraint is not over-the-top).

          • Aeon Skoble

            This is exactly correct.  In other language: it’s not violating your rights to forcibly prevent you from doing something you don’t have a right to do.

          • Jessica Flanigan

             This is really the heart of it isn’t it?  I think that there needs to be much more of a story about why the critics of the UBI think that the pre-political distribution of entitlements just happens to line up with the entitlements that are actually enforced in a market society and that a UBI violates those entitlements. I agree with Nozick too, but enforcing market society property rules without people’s consent is just as much of an interference as other rules.

          • MARK_D_FRIEDMAN

            Actually, my argument (and Aeon’s I think) has nothing to do with whether or not “the pre-political distribution of entitlements just happens to line up with the entitlements that are actually enforced in a market society.” We are claiming that in a state of nature it would be wrong for the surfer to force others to subsidize his sport, and I think that you agree. Thus, for us, nothing hangs on “the entitlements that are actually enforced in a market society,” since we hold that the original moral principle remains valid. But since you think that the existence of a liberal democratic state somehow alters this moral judgment, I believe that you should describe what about the modern state makes this so. 

          • Aeon Skoble

            What Mark said.  But also, Jessica, you say “enforcing market society property rules without people’s consent is just as much of an interference as other rules.”  I’m not sure this works without entailing some kind of moral nihilism, which I don’t think you are.   The claim “don’t hit me” and “I can hit people if I want to” are not morally equivalent claims.  We don’t need the consent of the would-be hitters to have a no-hitting rule.  We don’t need to obtain consent to a set of rules which prohibit things people don’t have a right to do in the first place, so such rules do not violate their rights.

          • I am no fan of ‘state of nature’ theory. Entitlements need not be recognised ‘pre-politically,’ ‘politically,’ ‘post-politically’ or at all, in order to be legitimate. In fact, I would say that no one knows what the full set of legitimate entitlements are. That is something to be discovered. But my conjecture is that they are those of an open-market society with only a small state, if any. Working out that conjecture in detail, answering the questions that it raises, is where the work of discovery is to be done.

      • Aeon Skoble

        “we can agree that coercion is always wrong, but we should acknowledge that the property system itself, which benefits the workers and not the surfer, is coercive”  
        Actually, I’m going to have to say no: if you’re going to characterize defensive uses of force as “coercive,” then I will not agree that coercion is always wrong. I’ll stipulate one of these, but not both at the same time.

        • Jessica Flanigan

           I should have said ‘pro tanto’ wrong, or something like that. In defense cases it may be excused, but the very exercise of coercion is intrinsically morally problematic in that it needs to be justified or excused.

          • The defence case is not coercion. It is not pro-tanto wrong but all-things-considered right; it is not wrong at all. I think that what you mean by ‘coercion’ is force or the threat of force, whereas what I (and some others here) mean by ‘coercion’ is a wrong use of force or the threat of force. A wrong use of force or threat is, I would say, one which either is, or threatens to be, a violation of someone’s rights.

      • MARK_D_FRIEDMAN

        Jessica,
        Thanks for the response. I essentially echo Aeon’s comment here, and his earlier response to you on the previous thread.

        In my own somewhat more verbose words, I would add that moral principles determine what constitute just property rules.  Thus, any just property scheme will be “coercive” because morality itself endorses coercion in a variety of circumstances. If person A attacks innocent person B with a knife, intending to kill B, and B forces A to cease by pulling a gun, B has justifiably coerced A to stop. Therefore, simply noting that property rules are coercive establishes nothing, in my opinion. The question is whether the coercion at issue is immoral.

        If respect for moral autonomy means anything, it is that competent adults are allowed to make their own choices (so long as they do not violate the rights of others), and must accept responsibility for the outcomes. If the lazy surfer wishes to surf rather than work, he must be permitted to do so, and must accept the trade-off he has consciously made between pleasure and material comfort. If other people prefer to work rather than surf (or engage in other leisure activity), the trade-off they have made between these goods should also be respected. Therefore, forcing taxpayers to subsidize the lifestyle choices of others is wrong.

        Of course, this principle might not apply in a society that is so morally corrupt that everyone is entitled to opt out of obeying its property rules, but I don’t take you to be relying on this scenario to justify UBI for the lazy surfer-dude.  It seems to me that in your typical liberal democracy, allowing parasitical behavior simply (as Danny notes) adds one more injustice to preexisting ones. Perhaps socialism would be more beneficial to the surfer, as would a society that so valued the art of surfing that it was specially subsidized, like we do ethanol and the arts. But, I understood you to be a libertarian/classical liberal, so you must think that socialism and subsidies are unjust. Living in a truly free market society is what we are morally entitled to, and in such a society we cannot coerce taxpayers to support the lazy. Accordingly, I fail to see the relevance of such comparisons.

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