During the recent Cato Unbound discussion on the history of libertarian thought, David Friedman has asked how the “neo-Rawlsian” libertarianism that John Tomasi and Matt Zwolinski (and I) affirm is a compelling alternative to the natural rights and utilitarian defenses of libertarianism. In this post, I explain the version of neo-Rawlsian libertarianism that I think can answer David’s concerns.

In David’s first post, “Natural Rights + ?” he asks if neo-Rawlsians endorse the Rawlsian Difference Principle. If they do, then they probably embrace the notoriously implausible maximin principle.  But that conception of justice has at least as many problems as natural rights and utilitarian views.

I don’t think the neo-Rawlsian view (to the extent that there is one) has to draw that deeply on Rawls. In fact, from what I can tell, even John, who is more Rawlsian than any of us, rejects maximin. So my goal is to sketch a broadly Rawlsian theory that fits within what John calls the  market democratic research program, a program that develops theories that combine a commitment to thick economic liberty with a concern for the least-advantaged.

The theory I sketch is broadly Rawlsian in two respects: in the justification for the principles and in the content of the principles (following a useful distinction drawn by Alex McCobin in his response to John and Matt). The justification is Rawlsian because it is contractualist in that it determines the correct principles of justice by asking which principles impartial, diverse, free and equal individuals would select for themselves. The principles are Rawlsian mainly because they take the form of two broad principles of justice, one that concerns a highly-weighted list of liberties and the other which concerns the distribution of other social and economic goods.

Neo-Rawlsian libertarianism, then, is composed of two principles of justice that I will develop by modifying Rawls’s two principles in light of important libertarian insights.

I. The Liberty Principle

Here’s the later Rawls’s statement of his first principle:

First Principle: Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value (PL, 5). 

The basic idea is that each person can claim against her fellows the moral authority to act in accord with her conception of the good and her sense of justice up to the point where this claim infringes on the similar rights of others. Each scheme of liberties must be adequate for citizens to develop and sustain their two “moral powers,” namely the capacity for a conception of the good and a sense of justice. Rawls singles out political liberties by giving them a special guarantee of fair value because political liberty is especially vulnerable to social and economic inequalities otherwise permitted by the Difference Principle.

Libertarians should alter this principle in a number of respects. First, the first principle includes a wide scheme of liberties but it excludes all economic liberties other than the ownership of personal property and freedom of occupation. John calls Rawlsians who endorse this view economic exceptionalists because they hold that the ground of their preferred scheme of economic liberties does not apply to broader economic liberties like freedom of contract, the ownership of capital goods, etc. A libertarian should accept these arguments and so elevate many economic liberties to the status of basic liberties (liberties that much be protected constitutional protection against legislative interference).

However, the neo-Rawlsian libertarian does not make all economic liberties basic rights. Like traditional Rawlsians, neo-Rawlsian libertarians only think that economic liberties are basic if they are necessary for the adequate development of one’s moral powers as described by a conception of the person as a (in Tomasi’s terms) responsible self-author. The right to own capital is a basic liberty because many valid conceptions of self-authorship include owning and running a business. However, the right to absolute ownership over capital is not a central part of being a responsible self-author. So there a conception of the person undergirds the scheme of liberties, simultaneously expanding and limiting their scope.

Second, following classical liberals, neo-Rawlsian libertarians demote the value of political liberty. Neo-Rawlsian libertarians hold that political liberties are not more important than civic, religious and economic liberties. Only some members of the public prize political participation more highly than other social practices. Further, neo-Rawlsian libertarians will deny that political liberty is a precondition for protecting other rights. Political liberties don’t improve outcomes all that much. For the libertarian, economic liberties are more important guarantors of freedom and justice. (For now I won’t address claims that political liberties matter less than other liberties, though I think there’s a lot to explore here, as Jason Brennan has recently argued.)

Finally, neo-Rawlsian libertarians will reject the idea that any of the liberties must be guaranteed their fair value. As long as each person has sufficient liberty to pursue her conception of the good and act in accord with her conception of justice, she has no further claim on her fellows.

So here’s my best rendering of the first principle of neo-Rawlsian libertarian justice:

The Neo-Rawlsian Liberty Principle: Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, a scheme compatible with the same scheme for all; these liberties include extensive civil, religious, political and economic liberties. 

This principle is neo-Rawlsian because (a) it has a contractualist foundation and (b) because it resembles the traditional Rawlsian first principle. Now let’s turn to the second principle.

II. The Social Justice Principle

Rawls’s second principle of justice has two parts. The first is the Fair Equality of Opportunity Principle and the second is the Difference Principle. Here’s the later Rawls’s statement of his second principle:

Second Principle: Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society (PL, 6). 

The second principle regulates social and economic inequalities. Now many of you know that the first principle has lexical priority over the first. But you should also know that the Fair Equality of Opportunity principle has priority over the Difference Principle.

The second principle concerns the arrangement of primary goods (goods that any rational form of life requires, like food, healthcare, etc.). We might call this the “social justice” principle or the “distributive justice” principle because it concerns the distribution of primary goods not determined by liberty rights.

Libertarians should alter this principle in a number of respects. First, they should reject an equal distribution of primary goods as the justificatory baseline. In other words, the reason that distributions require justification is not that they are unequally distributed. Instead, I suggest that distributions require justification on the same grounds as liberties are assigned to persons – that these resources are required to practice and pursue one’s conception of the good and sense of justice. In other words, the primary complaint that can be lodged against a distribution is that it does not provide enough for the adequate development and exercise of the two moral powers.

On the libertarian view, there is no presumption in favor of an equal distribution of goods because there is no presumption in favor of any goods existing at all. Goods must first be produced before they are distributed and social institutions should be arranged so that this basket of goods is as large as it can be. Then the least advantaged only have a claim on the cooperative surplus if it is required to ensure that their lives meet a decent threshold. Otherwise goods should be distributed in accord with the Liberty Principle. For this reason, I think the neo-Rawlsian principle of social justice is sufficientarian. The sufficiency threshold is bound to be controversial. But we do not need to set the threshold to proceed.

Second, libertarians should reject equality of opportunity as a basic part of justice. It is not equal opportunity that the government should ensure but rather fair opportunities. Equal opportunities will require leveling down in many cases (Rawls actually has a caveat for this case). What we want is for opportunities to be distributed such that they (a) maximize the net amount of primary goods and (b) provide a threshold of opportunities for the least-advantaged so that they can develop as responsible self-authors.

Third, libertarians should focus on maximizing the cooperative surplus, but not on maximizing the benefit of the least-advantaged. The least-advantaged cannot constrain a distribution on the grounds that it does not work to their maximal benefit. Further, libertarians will certainly reject the maximin principle on which the Difference Principle is based. There’s just no good reason to adopt it unless you have an incredibly thick impartiality guaranteeing device like Rawls’s veil of ignorance where all knowledge of probabilities is excluded. There’s just no compelling reason to be that risk averse.

Finally, libertarians are not in the business of rewarding goods to those who give up them up via deliberate risks they take or life choices that they make. So the sufficiency condition should only apply to those who accidentally fall below it.

So let’s reformulate the Rawlsian second principle into a neo-Rawlsian Social Justice Principle:

The Neo-Rawlsian Social Justice Principle: Social and economic distributions are to satisfy three conditions: first, they are to maximize the sum total of primary goods subject to the limitations of the Liberty Principle, second, they are to be attached to positions and offices open to all under conditions of fair opportunity, and third, they are to provide a sufficient bundle of goods to accidentally disadvantaged members of society. 

Now admittedly Rawls’s principles are unwieldy. And the principles I have formulated are more unwieldy still. So let me try to boil them down. Here’s the Neo-Rawlsian libertarian conception of justice in a nutshell:

Liberty Principle: Each person has an equal claim to a fully adequate scheme of equally extensive basic civic, religious, political and economic rights and liberties.

Social Justice Principle: Social and economic distributions should maximize the cooperative surplus and provide all with fair opportunities and a threshold of primary goods below which no one can accidentally and reliably fall. 

As John argues, the social justice principle should not run afoul of libertarian criticisms. We are not assuming that any one person distributes all these goods in a literal sense. Instead, we are specifying a condition for valid complaints against one’s institutional structure. Citizens of liberal societies have a complaint against their state (or market anarchist legal institutions) if the state upholds legal standards that predictably have effects that violate the first or second principle. Thus, their complaint applies to the use of coercion to sustain a society’s basic structure.

So we can answer David Friedman’s question of “Natural rights + ?” by pointing to the two principles and rejecting maximin and the Difference Principle in favor of our two principles. I am enough of a political liberal to worry that parties may not endorse any one set of principles as best. But I think that these principles best articulate our shared considered judgments about justice.

And here’s why: the two principles give great priority to liberty, but not absolute priority. Further, no one has a basic, absolute right to any form of private property. Instead, economic liberties exist only to respect and promote responsible self-authorship. Doing so requires extensive but not maximally extensive economic liberties. And second, the social justice principle is built on libertarian consequentialist concerns. The case for the market is not merely that it protects liberty but that it maximizes the cooperative surplus, provides opportunities for all and helps the least advantaged live a decent life.

In this way, we combine deontological considerations and consequentialist considerations within a contractualist framework.

Incidentally, we can also respond to Roderick’s claim that the self-ownership principle is sufficiently consequence-sensitive in virtue of building consequentialist considerations into the rationale for self-ownership. To charge self-ownership with being insufficiently consequence-sensitive would be, in Roderick’s words, double-counting. But we can see that isn’t so. Principles with a consequentialist rationale can still fail to be sufficiently consequence-sensitive. Our considered judgments should lead us to embrace these two principles over the self-ownership principle because distributions should be more directly sensitive to good consequences. In other words, if the consequences of “freed markets” were very bad, then we should condemn freed markets. On Roderick’s view, if freed markets produced bad consequences, we’d be much less justified in rearranging property rules to remedy those consequences. But that’s too absolutist a conception of property rights, even if the ground of self-ownership is partly that when followed it produces good consequences.

I’m not sure just what Matt’s principles are, but John’s principles are a bit more Rawlsian than what I have laid out. The two principles are rough approximations of what I think ideal justice requires.