The Rawlsitarian Paradox
[Free Market Fairness By John Tomasi • Princeton University Press, 2012 • Xxvii + 348 pages]
To write about bleeding-heart libertarianism is no easy task. Self-professed bleeding-heart libertarians, who include well-known political philosophers, now run their own website, and the movement has aroused among libertarians considerable interest. But the bleeding hearts do not profess a unified philosophical point of view. If someone is a Rothbardian, e.g., or an Objectivist, you at once know what views you need to address; not so for a bleeding heart.
If the movement professes no fixed body of doctrine, though, many bleeding hearts seek to combine support for the free market, albeit often in an attenuated form, with a favorable view of social justice, and, in particular, of John Rawls's theory of justice. Though Rawls was of course far from a supporter of the free market, a number of the bleeding hearts believe that his views can, suitably modified, provide a powerful defense of classical liberalism.
John Tomasi does not in Free Market Fairness call himself a bleeding-heart libertarian, but his excellent book offers the best and most comprehensive defense yet to appear of the position just described. Tomasi is a distinguished and imaginative political philosopher who teaches at Brown University, and every reader of his book will learn a great deal from it.
Tomasi describes in an engaging way what led him to what appears at first sight a mixture of incompatible commitments. On the one hand, he found classical liberalism appealing; on the other hand, he was attracted to a conception of justice usually taken to be inimical to that position.
Two classical-liberal ideas especially attracted him. The free market enables people to mold their own lives; no longer need they passively react to the wishes of others.
Growing prosperity seems to give an ever-wider range of people a sense of power and independence. It encourages a special form of self-esteem that comes when people recognize themselves as central causes of the particular lives they are living — rather than being in any way the ward of others, no matter how well meaning , other-regarding or wise those others might be. (p. 61)
Many have criticized the free market because, in Marx's phrase, it is an "anarchy of production": no central body coordinates the vast array of market prices. But this is of course not a failing but a virtue. Hayek has through his notion of "spontaneous order" done a great deal to illuminate why this is so, and Tomasi is impressed:
I am also drawn to the libertarian idea of "spontaneous order." … Friedrich Hayek argues that a free society is best thought of as a spontaneous order in which people should be allowed to pursue their own goals on the basis of information available only to themselves. Along with the moral ideal of private economic liberty, I find the libertarian emphasis on spontaneous order deeply attractive. (p. xii)
Among his fellow political philosophers, support for the free market is decidedly a minority view. Classical liberalism has been overthrown by what Tomasi, following Samuel Freeman, calls "high liberalism":
The distinctive political commitment of high liberals is to a substantive conception of equality. Perhaps as a result, high liberals are skeptical of the moral importance of private economic liberty. Unlike the classical liberals and libertarians, the high liberal ideal of equality leads them to affirm a conception of social or distributive justice. (p. 54)
Clearly, you cannot at the same time consistently be both a classical liberal and a high liberal. But Tomasi makes a surprising claim. The most important theorist of high liberalism is John Rawls, but Tomasi argues that Rawls's conception of justice as fairness, which he accepts, can be adapted to the defense of "market democracy," Tomasi's version of classical liberalism.
Rawls's theory is not the only left-liberal account of social justice on offer, and Tomasi does not intend to "marry market democracy to the Rawlsian program" (p. 105). But "I [Tomasi] choose justice as fairness simply because, once it has been adjusted and corrected according to market democratic principles, it is the conception of liberal justice I find most compelling" (p. 175).
In order to understand Tomasi's claim and to judge its success, it is important to grasp what market democracy means. It is by no means the same as the libertarianism of Rothbard and Nozick.
Within the framework of market democracy, economic liberties can properly be regulated and limited to advance compelling interests of the liberal state.… Unlike strict libertarians, market democrats can join high liberals as well as classical liberal thinkers such as Milton Friedman, F.A. Hayek, and Richard Epstein, who say that the liberals state should be given the power to provide a social minimum funded by a system of taxation. (pp. 91–2).
Tomasi also favors government support of education, e.g., through a voucher scheme. (A complication, which will not be pursued here, is that Tomasi distinguishes two versions of market democracy, democratic laissez-faire and democratic limited government; the second allows somewhat more direct government intervention than the first.)
But even if Tomasi is not a strict libertarian, does not his position differ entirely from that of Rawls, who expressly repudiates as inadequate the "system of natural liberty"? How then can Tomasi arrive at a Rawlsian defense of market democracy?
Tomasi's answer is not the obvious one that will first occur to most readers. Rawls's difference principle allows inequalities that make the worst-off class in society better off than they would otherwise be. Suppose that a great deal of inequality turns out to be to the advantage of the worst off because, e.g., economic incentives strongly motivate people. Would we not have a Rawlsian justification of inequality?
We very well might; but this is not the line that Tomasi takes. The point just considered depends on an empirical hypothesis about how people in the actual world are motivated. Tomasi prefers to operate at a higher level of abstraction. He is concerned, like Rawls himself, with "ideal theory." This consists of two tasks of identification. The first of these
involves identifying a set of principles of justice that expresses our commitment to treat citizens as free and equal self-governing agents. The second identificatory task concerns institutions … we seek to identify institutional regime types that "realize" the principles of justice. (p. 206)
What Tomasi has in mind, then, is this. Rawls's own social-democratic views are simply interpretations of his theory of justice. If we accept Rawls's principles of justice, we are not bound by Rawls's own views about how these principles are to be implemented, and the door to a market-democratic interpretation of Rawls lies open. To think otherwise, Tomasi holds, is to fall victim to what he calls an "ipse dixit" fallacy. "At the extreme, the exegetical approach treats justice as fairness as a plot in the archaeology of ideas rather than as a living, growing research paradigm" (p. 179).
For each of Rawls's principles of justice, then, Tomasi offers an interpretation congenial to market democracy. Rawls's first principle specifies a set of liberties that enjoys lexical priority to the distributive requirements of the second principle. Rawls does not include rights to acquire and hold productive property among the set, but Tomasi does. The ability to engage in business often proves an excellent way to develop one's moral powers. Why, then, exclude it from the list of protected liberties? Tomasi intends this point to apply to what Rawls terms the "special conception of justice," where "social conditions are favorable to the attainment of social justice" (p. 181). He contends that with "prosperity, the existence of thick private economic liberty is for many citizens an essential condition of responsible self-authorship" (p. 183).
Tomasi offers his own understanding of other Rawlsian principles. For fair equality of opportunity, Tomasi stresses the need for each person to have a wide variety of choices, as opposed to efforts to counter the effects of status. For the difference principle, he emphasizes the need to increase through economic growth the wealth of the worst-off class. Not for him are efforts directly to reduce inequalities, e.g., through progressive taxation.
Those of libertarian inclination will find Tomasi's political program far more acceptable that Rawls's own program, but I do not think that Tomasi succeeds in making a Rawlsian case for market democracy. The problem as I see it is that he does not take adequate account of the originality of Rawls's approach to political philosophy.
The situation that drives Rawls to his theory is that of people in a large society like the United States who are divided by conflicting conceptions of the good. Some of these conceptions may be better than others, and one may in fact be the correct one: Rawls does not commit himself on this question. But none of these conceptions can be shown to be true in the strong sense that it would be unreasonable for anyone to reject it. This state of affairs Rawls terms "the fact of reasonable pluralism."
Given reasonable pluralism, it would be wrong for the holders of one conception to impose their views on others; respect for others requires that we defend our political views with reasons others could acknowledge. Our aim, Rawls holds, should not be a mere modus vivendi with those who profess other conceptions of the good. Rather, we should seek a stable society in which people decide disputed questions by democratic discussion.
He intends the principles of justice to give the conditions under which such democratic decisions can take place. Herein lies Rawls's originality. By inquiry into the conditions of a stable regime, given the fact of reasonable pluralism, one can avoid appeals to controversial moral intuitions or problematic moral theories like utilitarianism. His approach to justification is "political, not metaphysical."
Why did I embark on this elementary account of Rawls's theory? The reason is to bring out that to adopt a Rawlsian account of justice, one must accept democratic participation in a strong sense. For Rawls, the people in a society are bound to one another by special ties and decide political questions together. The echoes of Rousseau here are not accidental.
Tomasi, it is clear, is not committed to this sort of democracy. People on his account need not value at all the process of deciding questions together with other citizens (though of course they are not precluded from doing this) He seems to me entirely right that productive business activity has great value; but this claim, right or not, derives from a particular conception of the good, not from asking for the presuppositions of democratic decision making under the condition of reasonable pluralism. In like fashion, the egalitarian implications Rawls finds in his principle of fair equality of opportunity and in the difference principle are not simply interpretations of his own that reflect distaste for wealth. Rather, once more they are plausibly taken as necessary conditions for the type of democratic participation Rawls favors.
Why does any of this matter? Suppose Tomasi responds that he rejects the democratic solidarity that Rawls wishes to promote. If he does this, though, then his defense of his interpretations of political liberty, fair equality of opportunity, and the difference principle depend on his own conception of the good. Like most political philosophers, he is reduced to his own moral intuitions or moral theory. He has abandoned the distinctive Rawlsian method of political justification.
I do not at all contend that he is wrong to do so: I am not a Rawlsian. But Tomasi ought to be clear that, though he has adopted some Rawlsian themes, he has proceeded in an un-Rawlsian way. Many of the words of Rawls are present in Tomasi's book, but not the music.
Taken apart from the misleading Rawlsian framework, Tomasi's book contains many good arguments in defense of classical liberalism. But the intuitions that underlie these arguments must be weighed against other intuitions and arguments, in particular those that support the more stringent libertarianism from which Tomasi recoils.
Tomasi has little use for strict libertarians. They consider property rights "absolute"; by this he appears to mean that they would not allow the interventions by government such as the social-safety net and provision of vouchers that he thinks acceptable. He remarks that libertarians, like high liberals,
single out the economic liberties for special treatment. But instead of lowering the status of the economic liberties, libertarians elevate them above all others. Economic liberties become the weightiest of all rights. Indeed, libertarians such as Jan Narveson assert that liberty is property. (p. 48, emphasis in original)
But if, as Narveson and Rothbard think, all rights can be analyzed as property rights, how does it follow that property rights are more important than other rights? To the contrary, the conclusion negates the premise. If there are no rights besides property rights, property rights cannot be more important than property rights. If Tomasi means that libertarians believe that property rights in the ordinary-language sense exceed in importance other rights such as civil liberties, this by no means follows from the libertarian view of property. In fact, it is directly contrary to Rothbard's own view that self-ownership is the primary right.
I do not want to close on a critical note. My favorite passage in the book is this:
From George Washington's warning to avoid the dangers of exclusive economic and military pacts with other countries … to James Madison's proposal of a constitutional amendment requiring political leaders wishing to go to war to raise funds from current taxes (rather than hiding the costs through borrowing), advocates of limited government have long been among the strongest critics of the politico-military establishments common with contemporary states … the very idea of a large publically funded military-industrial complex runs against the grain of market democracy. (p. 263)
That is well said indeed.
 A principle cannot be satisfied at the expense of a lexically prior principle; one cannot, e.g., sacrifice civil liberties to increase fair equality of opportunity.
 I have found very helpful for understanding Rawls's project Joshua Cohen, Philosophy, Politics, Democracy: Selected Papers (Harvard University Press, 2009) and Thomas Nagel, "The Problem of Global Justice" in Secular Philosophy and the Religious Temperament: Essays 2002–2008 (Oxford University Press, 2009) and Equality and Partiality (Oxford, 1995). See also my discussion in the Mises Review.
 Rawls's view of political justification, despite his appeal to overlapping consensus, seems to me a position one could reasonably reject. It itself rests on controversial assumptions about the value of deliberative democracy related in type to the disputable conceptions of the good it was designed to avoid.