[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.]

Will Wilkinson’s subtle and probing contribution to this symposium asks: how Hayekian is Free Market Fairness? The answer depends in part on what we think it means to be Hayekian. But it also depends on what one takes the project of Free Market Fairness to be. I focus here on the former question, but begin with a word about the latter.

I have two main goals in Free Market Fairness. First, and perhaps ultimately most important, I try to open up conceptual space for the launching of what I call a market democratic research program. The accounts of social justice that we inherited from theorists working in the late 20^th century share a moral defect: they neglect the importance of private economic liberty. But, I suggest, many of these once-left-liberal theories might be “market democratized” and thus morally improved. These accounts of liberal justice would be improved because they would combine a commitment to private economic liberty with a commitment to distributive justice. Such new accounts of liberal justice might be built up from a variety of different moral footings, and the arguments for them could be run on a variety of different argumentative levels (i.e. less idealized, more idealized, etc.).

The general point, though, is that Nozickian libertarianism has no claim to be forever enshrined as the only market-friendly alternative to left liberalism. There are classical liberal accounts of great technical sophistication that might be developed too. Jason Brennan and I call this (hoped-for) revival of classical liberalism “neo-classical liberalism.” In Free Market Fairness, I hope to give courage to anyone drawn to the project of neo-classical liberalism.

Second, and partly in service to that first goal, I offer a detailed argument for a particular market democratic conception of justice, the view that I call free market fairness. This is a market-democratized interpretation of a familiar approach to justice that has become known in recent decades as justice as fairness (though this approach actually germinated much earlier, at LSE in the 1940’s, on which see below).

Now, whatever one thinks it means to be Hayekian, I hope its clear that there is nothing necessarily anti-Hayekian about the first project. In terms of his institutional recommendations, Hayek was a classical liberal rather than a libertarian—a fact that famously vexed Ludwig von Mises, among others.  So my suggestion that contemporary scholars should seek to develop more sophisticated (extra-economic) justifications for Hayek-like classical liberal institutional recommendations should ruffle no feathers. Indeed, by inviting scholars to take Hayek’s institutional recommendations seriously, I would hope this suggestion might smooth them.

But what about my second project? Wilkinson suggests that this project looks more Rawlsian than Hayekian. Indeed, some might think, that project looks early-Rawlsian, the Rawls of A Theory of Justice. This is the Kantian Rawls. And the ambitions of the early-Rawls, especially when viewed in the light of the late-Hayek (that is, the Hayek of Law, Legislation and Liberty) look acutely un-Hayekian. This is the Humean Hayek. My arguments for free market fairness assume the coherence of seeking to identify a philosophical standard, strongly insulated from actual social practices, that might be used to evaluate those practices. My argument assumes the coherence of searching for norms of justice, founded in reason rather than in historical practices, a standard that might be philosophically constructed rather than simply “tumbled upon” though our observation of historical processes of cultural evolution. And if there is anything that anti-Hayekian, it’s that!

Ummm…not so fast. True, as Wilkinson notes, Hayek is “an ardent Humean.” True, as he notes, Hayek sees social rules as appropriately emerging from a process of cultural evolution. True, in Wilkinson’s elegant formulation, “Hayek believes that the rule-bound texture of social life is much subtler than we are inclined to imagine, and that the basis of our social order is to some extent inscrutable.” But what’s the implication from this? Wilkinson writes: “If he’s [Hayek’s] right, this doesn’t bode well for the prospects of political theorizing that attempts to transcend the facts and constraints of the contingent current disposition.”

The problem, however, is that, though ardent, Hayek is not purely Humean. While Hayek emphasizes that the basis of our social order is to some extent inscrutable, he does not consider that basis wholly inscrutable. And while he warns of us the dangers of theorizing in ways that transcend existing social facts and practices, he does not reject such forms of theorizing. On the contrary, Hayek necessarily engages in precisely those forms of reasoning himself.

There are some moments when the (late-) Hayek takes a constructivist approach to the problem of social evaluation. And as readers of Free Market Fairness know, I see those constructivist elements as being absolutely essential to Hayek’s political philosophy. They provide deep moral struts upon which the coral of Hayekian spontaneous orders can be productively grown.

In the preface to volume 2 of Law, Legislation and Liberty, a volume mischievously entitled The Mirage of Social Justice, Hayek notes that, while he was completing his book, John Rawls had published his landmark (and most Kantian) work, A Theory of Justice. And Hayek tells his readers that he decided not to include an extended discussion of Rawls’s theory because, despite what he expects to be the first impression of many readers, the differences between Hayek’s general conception of liberal justice and that of Rawls are “more verbal than substantive.” Later in the book, after sharply criticizing the way the term “social justice” is used in popular political discussions, Hayek affirms his commitment to the coherence of social justice as a concept: “there unquestionably also exists a genuine problem of justice in connection with the deliberate design of political institutions, the problem to which Professor John Rawls has recently devoted an important book.” [Note: for citation information, and for my fuller discussion of these passages, see Chapter 5 of FMF, “Social Justicitis,” esp. the section “Benadryl for Free-Marketeers” pp 151-160.]

About the same time that Hayek wrote those words, Robert Nozick was writing his oft-discussed critique of Rawls, a critique based on Nozick’s claim that Rawls was advocating a “patterned” conception of social justice. But Hayek, perhaps unlike Nozick, had closely studied Rawls’s early articles and so understood that Rawls did not claim that justice was a standard of evaluation for particular distributive outcome. Such an approach, (the earliest-)Rawls had argued, was incoherent. Instead, justice was a standard that must be applied, not to particular distributions (what Nozick criticized as the “time-slice” approach), but holistically to whole sets of institutions as they tend to function through time. And it is that problem of justice that Hayek—just like Rawls—understood there to be a genuine philosophical problem that needed to be solved.

Unnoticed by contemporary scholars, however, is that Hayek, again like Rawls, proposed a constructivist procedure of his own intended to solve that problem. Hayek’s idea, to put it into contemporary language, was to find a device of representation that might model our commitment to treating all citizens fairly. Here is Hayek’s formulation: “we should regard as the most desirable order of society the one that we would choose if we knew that our initial position in it would be determined purely by chance (such as the fact of being born into a particular family).”

As I describe in Free Market Fairness, Hayek says that he first begin thinking about justice this way because of a personal experience. As a young man in London during the bombing, Hayek needed to send his children abroad for their safety. Since there was a good chance that he might be killed, this meant that, whatever society his children ended up in, he could not even know that they would have the advantages (such as they are) of being raised in the family of a professor. That real experience stimulated Hayek to begin thinking about fairness, and thus to develop the decision procedure I just mentioned.

[Note: Hayek says that he developed this decision-approach in the early 1940’s, which would mean some thirty years before Rawls. If Hayek was first to think of the “original position,” is Rawls’s more famous device thus rendered “the unoriginal original position”? Hayek also suggests that the appropriate decision rule to ascribe to parties reasoning about political norms under uncertainty was a version of expected-utility maximization: the most desirable social order is the one that would maximize the chance that each person could use his local information to achieve ends known only to himself. Does Hayek, rather than (along with?) John Harsanyi, deserve credit for that important suggestion too?].

Does Wilkinson believe that these constructivist struts can be simply ripped out? Is Hayekian justice simply whatever evolves through our social practices? In Free Market Fairness, I suggest otherwise.  Like the (late-)Hayek, and decades later, the (early-)Rawls, I think constructivism has an important place in the defense of the free society. Free market fairness is a foundationally Hayekian view.