I’m a big fan of Tomasi’s new book. However, rather than promote it, I’ll attack it. Worse, for this exercise, I’ll be unfair. I’ll articulate some objections that I believe to be mistaken, but that I expect will be common objections. Worse, I won’t explain why these objections are mistaken until later. <Wow, so mysterious, says the audience.>

Bleeding heart libertarians, neoclassical liberals, Arizona liberals, or market democrats say they are committed to social justice. This explicit commitment to social justice differentiates them from other libertarians and classical liberals, some of whom are only implicitly committed, and others of whom are not committed at all.

But what does that commitment mean? In various places, Zwolinski has said, as a kind of first pass, that BHLers believe that part of the moral justification for the basic structure of society has to be that this structure systematically tends to benefit everyone, including and perhaps especially the least advantaged. But what does that mean? Some BHLers (including me) have offered the following:

The Counterfactual Test

Suppose that, even under favorable background circumstances, a regime of free markets and libertarian private property rights systematically tended to leave many people starving or destitute through no fault of their own. Suppose an alternative economic regime could solve this problem. Ceteris paribus, would you then favor the alternative regime over the free market regime?

Or, more simply:

No Libertarianism though the Sky Falls Test

If free market regimes systematically turned out to be disasters for the poor, but other regimes worked better, would you reject free market regimes?

You might have heard or read BHLers saying that a person counts as having a concern for social justice if she answers yes to either question. But that’s too weak. The problem is that this makes it too easy to count as having a concern for social justice. Few people upon reflection are absolutists about rights, especially economic and property rights.

Consider the following dialogue:

A: I think people should have the right to smoke pot.

B: Would you advocate giving them that right if it turned out allowing them to smoke pot systematically lead the bottom 20% of people to be destitute?

A: Well, I guess not, though I think that’s unrealistic.

B: Okay, so congratulations! You count as a bleeding heart drug reformer.

Whatever a commitment to social justice is, it had better be stronger than that.
For Rawls and his intellectual progeny, it’s easy for them to say they have a stronger commitment. After all, Rawls thinks that as a matter of basic justice, we have only limited economic and property rights. His first principle of justice specifies a right to choose one’s occupation (though not to make many decisions regarding the exact nature of one’s employment contract) and a right to own personal property. So, you get to have your very own toothbrush and copy of Justice as Fairness, and society doesn’t get to tell you to become a medical doctor rather than a surfer. Everything else, however, is up for grabs. Whether a society will have markets and private property in the means of production is determined almost exclusively by what it takes to realize the difference principle. If it turns out that allowing people to own factories best realizes the difference principle, then a Rawlsian just society will allow that. Rawls’s favored political system—“property-owning democracy”—imbues people with legal rights to own and control productive property, but they get these rights solely for the purpose of achieving social justice.

In Justice as Fairness and A Theory of Justice, Rawls considers various possible economic and political regimes, and tries to determine which regimes are compatible with justice as fairness under ideal conditions. Rawls’s writings about institutions are, well, notoriously lame. He does a lot of fudging. He fails to play by his own rules, for instance, by comparing non-ideal versions of the systems he dislikes to ideal versions of the systems he likes. (Rawls isn’t supposed to do that. He’s only supposed to be consider these regimes under ideal conditions.)

In the last chapter of Free Market Fairness, Tomasi expertly shows that at least two kinds of capitalist and broadly libertarian regimes would satisfy justice as fairness under ideal conditions. He shows that had Rawls played fair, Rawls would not have rejected laissez faire capitalism as a candidate regime to realize justice as fairness (under ideal conditions). (For what it’s worth, I think, contrary to Rawls and Tomasi, that command-economy socialism also can satisfy justice as fairness under ideal conditions. But that’s another issue.) However, Tomasi could have made this point without all the apparatus of the earlier chapters. He doesn’t need to cast himself as offering a new theory of justice (“neoclassical liberalism”). He doesn’t even need to endorse Rawlsian ideas. Chapter eight of Free Market Fairness could stand on its own, as a demonstration that if we play the game “Show regime X can satisfy justice as fairness under ideal conditions as Rawls defines them”, then contrary to Rawls’s own assessment, capitalist regimes come out winners.

Tomasi wants to do more than that, though. He wants to convince libertarians to advocate social justice, or, better yet, show them that they implicitly already do, despite their protests to the contrary. I’ve already mentioned one worry about this above. The other thing Tomasi wants to do is to prove that an extensive set of economic liberties and property rights are among our basic liberties. He wants to show that Rawlsian should advocate a “thick conception of economic liberty.” That is, Rawlsians have a test for whether a particular liberty or right gets included in the first principle of justice. Tomasi wants to show that rights to own productive property, to make contracts, to speculate in the market, and so on, pass that test and so must be protected by the first principle.

Let’s say Tomasi’s argument works. Let’s say that Tomasi successfully shows that Rawlsian foundations require us to “elevate” economic liberties to a higher status, that we are owed such liberties as a matter of respect as free and equal agents and not merely as an instrument to achieve social justice, and that such liberties warrant a high degree of constitutional protection.

Critics are bound to say that if so, this squeezes out all the room for social justice.

Consider as an analogy: Even if outlawing progressive death metal would somehow significantly raise the income of the poor, Rawls’s theory of justice forbids the state from doing so. Why? Because rights of free speech and free expression are among our basic liberties, and these have lexical priority over the difference principle. (Most Rawlsians would say, however, that if outlawing progressive death metal were for some reason necessary to prevent the bottom 20% from starving, then this would override the presumption in favor of protecting the right to make and listen to progressive death metal.)

Now apply this to economic liberties: If Tomasi is right, then economic liberties have the same status as the right of free speech. So, even if instantiating some liberal socialist economic regime would significantly raise the income of the poor, Rawls’ theory of justice (as corrected by Tomasi) forbids the state from doing so. Why? Because commercial and economic liberties are among our basi liberties, and these have lexical priority over the difference principle. (Though, Tomasi would say, this lexical priority could be overridden. If the bottom 20% are going to starve under a market system but flourish under a liberal socialist system, this would override the presumption in favor of protecting these economic rights. However, as we’ve already seen above, that’s not that interesting.)

So, a summary of my unfair criticisms:

1. Tomasi, Zwolinski, and everyone else on this blog, including me, have far too weak a notion of what it means to endorse social justice. Basically everyone except a few crazy absolutists counts as having a commitment to social justice.
2. Tomasi shows that under ideal conditions, capitalist regimes can satisfy justice as fairness. But he didn’t need to do all that work in chapters 1-7 to show that.
3. Tomasi’s theory has so expansive a notion of economic liberty that a commitment to liberty crowds out or trivializes a commitment to social justice. (This explains 1.)