John Rawls was a critic of libertarianism. This much is well known. What is less well known is Rawls’s criticism of libertarianism in Political Liberalism (which I’m rereading in preparation for a seminar I’m teaching this fall). The only direct discussion can be found in Lecture VII, “The Basic Structure as Subject,” section 3, “Libertarianism Has No Special Role for the Basic Structure.”

I. The Basic Structure of Society

First some background. Rawls thinks that the subject of justice is a society’s basic structure, which he defines as follows:

By the basic structure I mean a society’s main political, social, and economic institutions, and how they fit together into one unified system of social cooperation from one generation to the next (11).

A number of philosophers (among them Robert Nozick in ASU, Ch.7, Sec.II, “Macro and Micro” and G.A. Cohen in Rescuing Justice and Equality, Ch.3) have criticized Rawls for holding that principles of justice apply first and foremost to a society’s basic institutional structure rather than to the behavior of individuals. I will not pursue that line of criticism. My point is to familiarize you with the point that for Rawls the first (but not the only) subject of justice is a society’s political organization as a whole.

II. Libertarianism Has No Special Role for the Basic Structure

Rawls’s stated problem with libertarianism is that it has no role for the basic structure. After briefly describing Nozick’s position, he complains that the Nozickian sees the state “just like any other private association” (264) as the state arises in the same way as other associations. And even if the state has a unique origin and serves unique purposes, it still bears the same relation to individuals as any private corporation. As a result,

There is in general no uniform public law that applies equally to all persons, but rather a network of private agreements (264).

Rawls concludes from this that,

While the libertarian view makes important use of the notion of agreement, it is not a social contract theory at all; for a social contract theory envisages the original compact as establishing a common public law which defines and regulates political authority and applies to everyone as citizen. But political authority and citizenship are to be understood through the conception of the social contract itself. By viewing the state as a private association the libertarian doctrine rejects the fundamental ideas of the contract theory…. (255).

This passage is brief and a bit obscure. Now, the purpose of this criticism is to help illustrate the sense in which Rawls’s view employs the idea of the basic structure. But there is a criticism here, and I hope to make some sense of it before rebutting it. While many strands of libertarianism deny that there is or should be such a thing as a publicly recognized system of law that applies equally to all persons in the sense that persons in a society form a body politic, libertarian political theory as such need not. Instead, a libertarian political liberal reinterprets the body politic as a spontaneous order, in a sense I will explain below.

III: But What Is the Problem?

Let’s assume for the moment that principles of justice apply first and foremost to a society’s basic structure. That is, principles of justice evaluate and structure the economic, legal and political orders as a complex whole by determining which institutional rules should govern them. No libertarian heavily influenced by Mises, Hayek, Friedman or Buchanan need get off the boat here (though she is welcome to join Rothbard, Nozick and Rand in doing so).

If so, then the apparent problem with (Nozick-Rothbard) libertarianism is that it does not apply principles of justice to the basic structure. That is, the theory is too “micro” since it applies justice only to individual interactions. But that is plainly not Rawls’s main concern about libertarianism. His real concern is that libertarians cannot grasp the true social relationship between the individual and the political order (the state, for Rawls). The relationship between citizen and state cannot be proprietary. Instead, it is in some sense deeper. Following Rousseau and Kant, Rawls thinks that the implicit political ideals of a liberal democratic culture imply that the people relate to the state as a corporate, sovereign body. The people form a body politic. 

IV: What’s a Body Politic? Why Should We Want One?

Libertarians are bound to find this idea perplexing. But if you want to get the idea, just think about corporate organization. Rawls thinks the proper relationship between person and state is not the relationship between consumer and corporation but between board member and corporation. Citizens and the rules which govern them constitute the corporation. They form (albeit contractually) a corporate body.

Why conceive of the relationship between the state and the individual in this way? The answer is Rousseau’s – we’re looking for a form of social organization that both orders social life and expresses the will of the people. The political order preserves the freedom of the people by only imposing laws on the people that they have individual reason to endorse (which I read as the first formulation of the idea of public justification). The reason that person and state have a properly public relation is that such a relation is required for people to be genuine masters over the political order and so use the political order to express their freedom and promote the common good.

The obvious libertarian reply is that people can be genuine masters over the political order via the market and can use contracts to express their freedom and promote the common good. But Rawlsians think that libertarians miss the point. The Rawls-inspired political philosopher is most concerned with how the rules of political order acquire genuine moral authority, that is, why people should accept as moral the demands of the political order when such demands seem prima facie incompatible with the natural freedom and equality of persons. For the Rawlsian, following Rousseau and Kant, they could only have such a reason if they rationally impose the system of public law on themselves. They can only be both free and subject to the law if they self-legislate the law.

V: Libertarians Cannot Abolish The Body Politic By Abolishing the State

So here’s Rawls’s critique in a nutshell, I think: libertarianism is an inadequate political doctrine because it cannot solve the problem of the social contract – justifying the authority of the political order as an expression of the freedom and equality of persons – because it postulates the wrong relation between person and state.

Another obvious libertarian reply presents itself: Who cares about giving the political order authority? That’s bad! But this reply fails to recognize the even a market anarchist property order needs political authority in the sense that it must provide persons with reasons to comply with the property claims made by individuals. Thus, the question of political authority arises even in the absence of the state, a point the social contract theorists understood so well and that traditional libertarians understand so poorly.

It just won’t do to exclaim “Non-aggression principle!” when two people have a property dispute (please watch the Youtube video at the link). To be fair, all libertarians recognize that people will dispute the proper interpretation of private property rights in a free society. And they recognize the need for – at the very least – a polycentric, spontaneous order of arbiters to solve these problems. But the libertarian focus on such disputes is so narrow.

The great social contract theorists taught us that people have all sorts of moral and political disputes, not merely about the content and application of libertarian property rights. If we need (at least polycentric, consensual) arbiters to lay down authoritative interpretations of libertarian property rights, surely we also need arbiters to lay down authoritative interpretations of political and even more demands themselves!

Please, please, please don’t think that I am equating an arbiter with the nation-state. In my view, we need publicly justified arbiters but they can take many, conflicting forms. Courts, priests, spontaneously evolved social norms, signposts, traffic lights, insurance companies and friends can all serve as arbiters. My point is just that the traditional libertarian misses the need for such arbiters to create an authoritative moral system of norms.

The social contract theorists realized that declaring your interpretation of the moral law and acting accordingly was not enough to respect others as free and equal. If people really wish to treat others as equals, they must recognize others as exegetical equals, as equally entitled to interpret the content of the moral law. Even if some people are cognitively better interpreters, they have no natural authority to obligate others to comply with their judgments. Consequently, since all have an interest in having such disputes resolved in a respectful way, they are committed by their own moral views to submit their judgments to others in order to resolve a wide array of their disputes.

VI: Back to Rawls

Rawls faults libertarianism for failing to account for the need for authoritative moral and political arbiters when people disagree about what is right and good in life. Rawls thought that the best way to solve this problem is people to (rationally, not actually) constitute themselves as a public body which laws down laws for itself as a liberal democratic nation-state. We need some kind of publicly authorized state to have a publicly recognized set of rules that each person has reason to endorse if we are to solve the real, ubiquitous problem of how to justify political and moral authority in a world of free and equal people who reasonably disagree.

VII: The Libertarian Body Politic is a Spontaneous Order

I think Rawls was basically right about Nozick, Rothbard and their followers. For what its worth, I think the same criticism applies to Rand and even libertarian utilitarians. Utilitarians simply fail to grapple with the problem of moral authority because they do not recognize how fundamental it is to the content of morality (that’s why we should be contractualists).

But libertarians can easily respond to Rawls’s criticism by offering an alternative interpretation of the idea of the body politic as a supra-state (or anti-state) spontaneous order.

To see this, consider what it means for the public to recognize a common system of rules that applies to them all equally. Must they all engage in this process in the actual world, at once? No Rawlsian thinks so. The principles adopted by the body politic are those that make the best sense of our shared considered judgments, not ones that the actually adopt.

The problem I have with Rawls is that he thinks the body politic must be build around a nation-state’s constitutional essentials that embody a single liberal conception of justice (the most reasonable of which is his Justice as Fairness). But even Rawls admits that there are valid liberal conceptions of justice that differ from his. So long as a liberal conception protects basic liberties, gives them special priority over other considerations and provides sufficient all-purpose means it counts as a reasonable liberal conception that can be the object of an overlapping consensus. We can answer political philosophy’s fundamental question with a liberal political conception that is quite different from Rawls’s preferred view. We don’t need two principles, we don’t need an original position, we only need public recognition of a system of interlocking social institutions that institutionalize liberal political commitments. And such institutionalization can arise in a polycentric, emergent and consensusal fashion.

VIII: A Liberal Anarchist Body Politic – The Limit Case

Let me be (mildly) more concrete for a moment. Imagine a polycentric order, one where there is no nation-state that monopolizes the legislative, executive and adjudicative functions of government. Instead, this social order protects liberal basic rights and liberties via an interlocking and sometimes conflicting system of consensual public courts, some for-profit and some non-profit. Due to the lower transactions costs facilitated by a uniform legal code, a more or less public and uniform system of law emerges from the polycentric legal order. The law is publicly justified – each person has reason to endorse the laws to which she is subject, even though no legislature exists. Further, the law reflects the moral judgment of the body politic that certain liberal rights are to be protected and given effective priority over other social concerns. The effective power of the market order ensures the protection of these rights as effectively as a prone-to-abuse democratic nation-state.

Second, while no nation-state guarantees access to all-purpose means to ensure the worth of the basic liberties, the market system provides such extraordinary wealth that between markets and non-profits, everyone has reliable, effective all-purpose means available. Further, the moral order of this society is structured such that if some people fall below a decent minimum, protection agencies will slightly raise their prices in order to fund a UBI as a joint act of public good will.

I do not claim that such a society is politically feasible. For the Rawlsian, a political ideal has normative force so long as it is possible for the society to exist given the laws of political sociology and economics and that it can be stable for the right reasons. I assume that mainstream political liberals will deny that the society I describe can be stable for the right reasons, but only on the basis of their (in my view contentious) interpretations of social science.

IX: A Libertarian Society Has a Special Role for the Basic Structure

My point is simply that this largely market anarchist society has a special role for the basic structure. It has achieved an overlapping consensus on a liberal political conception that, while it protects thick economic liberties, satisfies Rawls’s conditions for a liberal political conception. The people as a body politic sustain a system of public law that protects basic liberties and ensures their worth, even though it employs less direct and more decentralized and consensual methods of provision. But surely the method of provision is not enough to undermine whether a society’s basic structure is well ordered, so long as the method if successful.

Rawls is right that traditional libertarian political theory has no special role for the basic structure in the sense that it postulates the wrong (private) relation between person and state. But I think he is wrong to think that libertarian political institutions cannot sustain the relevant public relation between person and state. The body politic can make judgments, sustain the public system of law and generate an overlapping consensus on a liberal political conception of justice through free, spontaneous order processes.

In sum, libertarians are right about which system of law is justified, and Rawls was largely right about how such a system of law must be justified.