The Pacific APA is holding an author meets critics session on John Tomasi’s Free Market Fairness in late March. I’m one of the critics, along with Steve Wall and Paul Gowder. Over the next few weeks, I’ll post my comments for the session. I’ll blog after the session about Tomasi’s response (or perhaps he’ll blog his response here instead).

Overview:

No one gets extra credit for having the most morally ambitious or demanding political theory. Nevertheless, Tomasi has produced the most morally ambitious and demanding liberal political theory yet. We all grew up being told that we must choose: social justice or a strong commitment to economic liberty, but not both. Tomasi’s says justice requires both, thank you very much. You don’t get to choose one or the other. Some will regard his book Free Market Fairness as an attempt to apologize for a certain form of welfare state capitalism. Not so. Tomasi has come not to apologize, but to cast stones. Just as people in the Rawlsian camp—who often refer to themselves with the self-aggrandizing label of “high liberal”—look down upon classical liberals and libertarians for having underdeveloped moral concerns, so Tomasi looks down upon Rawls, Nagel, Freeman, and so many others in the field, considering them in important respects backward, parochial, conservative thinkers.

Tomasi’s project is to try to imagine a set of institutions that both 1) provides an expansive range of permissible choices for each citizen and 2) at the same time acts to ensure that citizens have the means to realize this freedom.

Immanuel Kant begins the Critique of Pure Reason by saying he had to deny knowledge to make room for faith. Similarly, 20^th century left-liberals believe they had to deny a basic right to economic liberty in order to make room for social justice. But, Tomasi asks, what if no such denial is needed?

Among the critics here today, I’m the closest to Tomasi in terms of ideological disposition. By any sensible criteria of classification, Tomasi and I are in the same ideological class, even if we have lots of disagreements. Indeed, Tomasi and I have even written an essay together for David Estlund’s Oxford Handbook describing, in the abstract, what we regard as the new wave of classical liberal thought. While most introductory political philosophy textbooks think Nozick is an exemplar of libertarian thinking, we regard the hard libertarianism of Rothbard, Nozick, and Rand as a kind of aberration in the mainline of classical liberal thought. Classical liberalism has always been animated by a deep concern for the poor and vulnerable. Adam Smith revolutionized economic thinking by saying that the wealth of nations is measured not by the size of the king’s treasury or the number of ships in the armada, but instead by the fullness of the common man’s stomach and the opportunities available to his children. Early classical liberals did not employ the language of “social justice,” but they nevertheless were animated by these concerns. The new wave of classical liberals are much more willing to talk in these terms.

While I accept many of Tomasi’s conclusions, I’m still worried about many of his arguments. That said, I find the strength of the approach lies not so much in this particular argument or that, but in the broad kinds of gestures Tomasi makes. To hard libertarians, Tomasi says, “Once you understand what the concept of social justice really means, surely you must find it attractive. Suppose I showed you that you could accept social justice without this coming at the expense of your other cherish moral ideals. Wouldn’t you want to?” To soi-disant high liberals, Tomasi says, “You thought you must relegate economic liberty to a low status in order to preserve social justice. But, come now, suppose it turned out we could get social justice and economic liberty at the same time. Wouldn’t you want to?” Whatever the merits or demerits of Tomasi’s explicit arguments, these gestural sort of arguments seem compelling to me. If you really are a liberal first and foremost—rather than, say, a deliberative democrat—you think by default people ought to have a huge range of freedom. And if you are at all a humanitarian, you’d better not be advocating social institutions though the sky falls. Instead, you should think one test of good institutions is that they give everyone a stake in those institutions.

In this essay, I discuss five main concerns with Tomasi’s book. These are:

1. There’s good reason to think that Tomasi shows why, from a Rawlsian point of view, economic liberty should be on par with other liberties. But at the same time, I’m worried that he just exposes how weak the Rawlsian argument for liberty is. One might read Tomasi not as proving economic liberties are basic, but as instead proving that the Rawlsian test for basic liberties isn’t very good.
2. One might worry that under not so favorable conditions, Tomasi’s insistence that economic liberty is a basic liberty means that there’s no room for social justice. Call this the exclusion problem. I want argue there is no exclusion problem, despite what critics might think.
3. Tomasi needs to explicitly deal with the issue of immigration. This is not a side issue, but rather a core question about the legitimacy of government and territorial sovereignty.
4. There’s good reason to think Tomasi shows that his favored institutions can realize justice under “ideal conditions”. But, at the same time, I’m worried he just exposes how boring ideal theory is, as it’s very easy for an idealized description of many different kinds of regimes to realize justice in those conditions.
5. John doesn’t really show that classical liberals or libertarians must embrace social justice. Rather, he just shows that for many of them, such an embrace would be more comfortable than they realize.

The Argument for Moral Parity

 Tomasi wants to argue that the economic liberties are on par with civil liberties. I agree with this conclusion, or at least, something very close to it. Again, I think Tomasi’s best argument is gestural: If you really are a liberal, you have to assume by default that people do have thick economic liberty. They only reason would deny this is if you thought you thought it necessary to carve out a sphere for social justice. So, if someone like Tomasi shows you can have both social justice and economic liberty, you should rejoice.

However, I’m not sure I find Tomasi’s actual arguments compelling. Part of the problem is that he relies upon a Rawlsian foundation for trying to explain what determines our sphere of rightful liberty. He does a reasonable job showing that Rawlsians have no special reason to exclude economic liberty, but the problem, from my perspective, is that the Rawlsian argument for liberty is pretty lame. [N.B.: I realize Rawls has other arguments besides the moral powers argument. I’m focusing on this here because it’s the argument Tomasi relies upon.]

Samuel Freeman summarizes Rawls:

For Rawls the basic liberties include liberty of conscience and freedom of thought and expression; freedom of association and the rights and liberties that maintain freedom and integrity of the person (including freedom of occupation and a right to hold personal property); equal political liberties and the rights establishing the rule of law. Rawls explicitly rejects economic rights, including ownership of means of production, as among the basic liberties, saying that the scope of economic rights are to be defined and regulated by his second principle, including the difference principle.[i]

On the Rawlsian theory, liberties get to count as basic liberties just in case they bear some sort of special relationship to our “two moral powers,” i.e., our capacity to develop a sense of justice and our capacity to develop and act upon a conception of the good life. The trick is figuring out just what this special relationship is.

Now, frankly, trying to explain where liberties and rights come from is a difficult project. But I don’t find the Rawlsian theory of this persuasive, and for that reason, I don’t find Tomasi’s version of it persuasive either. However, Tomasi’s version seems as good or better to me than the orthodox position.

So, what’s the special relationship between a basic liberty and the two moral powers? Samuel Freeman says that a liberty is basic only if it is necessary for all citizens to have that liberty in order to develop the two moral powers. Freeman might say, “I, Freeman, am proof that thick economic liberty isn’t necessary for all people to develop their two moral powers. I have the two moral powers despite not exercising thick economic liberty.” Tomasi’s response to Freeman is that Freeman is mistaken—in fact, his capacity for responsible self-authorship is stunted without such freedom.

I’m not so sure. People in Denmark and Switzerland enjoy much more economic liberty than people in Russia. Does this mean that Russians can’t develop a sense of justice or a conception of the good life? That seems deeply implausible. In fact, perhaps only a handful of countries allow citizens to have the range of economic liberty Tomasi thinks important, yet, despite that, most citizens in those countries can and do develop the two moral powers.

Victory for high liberalism? Nope. It is also deeply implausible that that it is necessary to have massive amounts of freedom of speech, freedom of participation, democratic freedom, or the other Rawlsian basic liberties in order to develop a sense of justice or a conception of the good life. Again, people in Denmark and Switzerland enjoy much more civil liberty than people in Russia. Does this mean that Russians can’t develop a sense of justice or a conception of the good life? Obviously not. In fact, only a small handful of countries in the world actually afford their citizens the full scope of Rawlsian basic liberty. However, in the overwhelming majority of the unjust countries, the overwhelming majority of people develop (or at least could develop) a sense of justice and a conception of the good.

If Freeman’s test of what makes something a basic liberty is the right test, then I regard this as an argument against liberalism. That is, Freeman’s theory of what makes something a basic liberty ends up being a reason to reject, not to embrace, liberal political philosophy. In fact, it seems to me very little liberty is strictly speaking necessary for the typical person (let along all people, as Freeman would have it) to develop the two moral powers. People in deeply authoritarian or totalitarian regimes will have a difficult time having the proper evaluative horizons open to them for them to authentically develop the moral powers, but even in such countries, it’s not strictly speaking impossible. To develop the two moral powers, you don’t need much freedom of speech, freedom of marriage rights, much freedom of association, or much political liberty. You don’t need to have the right to vote or run for office. You don’t need to have full freedom of bodily integrity, and you don’t need to be free of physical harassment from state officials. You don’t need to have the right to choose your own occupation. And so on. Freeman and Rawls say that X is a basic liberty only if it is necessary for all people to have that liberty in order to develop the two moral powers. But it’s really easy for us to imagine people developing the two moral powers without having much liberty. Epictetus surely developed his two moral powers more than most people, and he managed to do so while literally being a slave. Aleksandr Solzhenitsyn developed his two moral powers despite living in a totalitarian regime and despite being imprisoned in the gulag. And you can find other historical examples of people who have developed their two moral powers despite lacking much freedom. So, if Rawls and Freeman are right about what makes something a basic liberty, then basically nothing is a basic liberty.

No [more than minuscule] set of freedoms is actually necessary for people to develop the moral powers, unless we go and redefine the moral powers such that freedom is constitutive of them. But then that’s just question-begging.

Elsewhere, I’ve seen Freeman say that X is a basic liberty only if it is necessary for all people to develop and exercise the two moral powers. This won’t help matters. After all, if Necessarily (P and Q), then necessarily P and necessarily Q. [Sorry, modal logic notation doesn’t show up on the blog.) So, the class of X’s necessary to both develop and exercise the two moral powers is equal to or smaller in size than the class of X’s necessary just to develop the two moral powers.

On Freeman’s behalf, let’s change the “and” to “or”. Let’s say something is a basic liberty only if it is necessary for all people to develop or exercise the two moral powers. The problem here is that this new test is probably both too narrow and too broad. But it depends on just what counts as sufficiently “exercising” the two moral powers. Consider political rights. The typical person in a democracy could effectively exercise her sense of justice and the good life without having the right to vote, join political parties, or run for office. The typical person could effectively exercise her sense of justice and the good life even if we arbitrarily placed a bunch of restrictions on her freedom of religion or occupational choice. E.g., suppose the United States forbade Americans from worshipping Zeus. Surely, this is a violation of freedom of religion. But since pretty much no one wants to worship Zeus, this won’t actually impede anyone from exercising their moral powers. (Unless, however, you decide to define “exercising the moral powers” in a question-begging and tautologous way, such that one exercises the moral powers only if one has certain freedoms. That’s fine if you want to do it, but then you’ll never be able to settle debates about our sphere of rightful freedoms.)

So, we need another relationship between “basic liberty” and “two moral powers.” Fill in the blank: X is a basic liberty just in case it ___________ the two moral powers. Some candidates:

1. …might be useful to developing…? That can’t be right. It’s too broad. I’m pretty sure that a special educational program, a version of Émile, in which we allow teenagers to murder, say, a homeless person, would be conducive to developing people’s two moral powers. Imagine the shock most people who feel after having killed another. This might be a big moral developmental milestone. At any rate, it will be easy to imagine things that 1) clearly violate what we should regard as each others’ rights but 2) are helpful or conducive to developing our moral powers.
2. …tends to be conducive to developing…? Again, this will be too broad, if not as broad as the last suggestion. It will also be too narrow. Rawlsians tend to think that political participation rights are important basic liberties, but the available evidence in political psychology strongly suggests that exercising these rights tends to impede rather than promote most people’s capacity to develop their two moral powers.[i]
3. …tends to maximize the development of…? Same problem as before.