John Tomasi’s Free Market Fairness

Over at the Bleeding Heart Libertarians site, they are having a symposium on John Tomasi’s new book Free Market Fairness.  The book takes a Rawlsian approach to political philosophy, but argues that Rawlsians should treat economic liberty as one of the basic liberties.  Under this approach, economic liberty would not simply be ignored by Rawlsians and treated as part of the matters that are subject to the difference principle, but would be given a very high priority similar to personal freedoms.   The symposium includes a lot of important philosophers and is well worth reading.

Here is a brief summary of one aspect of Tomasi’s argument by Samuel Freeman, a Rawlsian scholar and one of the participants:

[John Tomasi’s] position purportedly supports both laissez faire and a restricted welfare state capitalism. (pp.116-117)  The latter–“democratic limited government”–he says resembles the views of Hayek and Friedman.  There’s little indication that [Tomasi] would endorse more extensive social welfare systems characteristic of Northern European capitalist social democracies.

Tomasi says: “the central moral claim of market democracy [is] that thick economic liberties are among the basic rights of liberal citizens.”  (p. 121)   He understands basic rights in terms of Rawls’s first principle of justice, the principle of equal basic liberties.  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 am happy to see Tomasi’s book.  Back when I was a junior in college in 1979, I took a course in Rawls’s Theory of Justice, and wrote a paper that argued that Rawls should have included economic liberty as a basic liberty.  My professor thought that the paper, if revised, was publishable in a philosophy journal, and it has always been one of my regrets that I didn’t make the effort necessary to do so.  (The paper also argued that there was no justification for applying the difference principle to a single country rather than to the world.)

There are some differences between Tomasi’s book and my former approach.  I wasn’t a Rawlsian, but a Nozickian.  I was merely arguing against Rawls’ justification of welfare liberalism; I did not think his approach was the best one.  It seems that Tomasi does.

These days I continue to believe these critiques of Rawls are well taken.  I also continue to believe that his basic approach is the wrong one, but I am no longer a Nozickian.  Instead, I am a welfare consequentialist.

(Note: I deleted a sentence from the end of the post, which upon reflection seemed to raise complicated issues that are unnecessary to my basic point.)

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. says

    Aristarchus: the veil of ignorance point iestlf is really just about imagining that you don’t know who in society you’re going to be, before you sign the social contract. So that adds a caveat to handle things like, Of course I would have consented to a society that enslaves people with dark skin, because I have light skin! etc. That’s a useful tool, but I didn’t intend to say that it is the entire basis for the line between stupid and unjust laws. Actually, it sounds like your objection has more to do with that particular hypothetical act of giving consent iestlf which is fine, and I’m just going to answer you as though that was what you meant, but please correct me if I’m mistaken.What I wrote was, A fundamental right is a protection without which people would not have consented to the social contract. That means that, in our hypothetical state of nature loosely approximated by prehistoric society, we would be better able to protect that ability or aspect of ourselves than we would under this government being formed. One problem with this definition that your comment highlighted (intentionally or not) is: what if the government is better than the state of nature with respect to one ability/aspect, but equal (or worse) in all others? You’d opt into that contract if it was an improvement over the status quo, but that doesn’t require superiority in every important detail.I do think that I would prefer a tribal society or anarchy to a government through which a totalitarian ruler could and arrest and punish them if they tried to do anything sensible to avert disaster for themselves personally or if they failed to meet physically impossible standards. At least under a more primitive system, I am more free to defend myself, to run away, to think what I want and express opinions if I want, and so forth. So maybe we are slightly differently calibrated on our political-injustice-ometers.I agree with you that the standard I put forward in this post is not a perfect one. (That’s why I hazarded it.) Still, I think it gets at something that is valid. Here’s a question that I think would clarify the points where we disagree: Are you arguing that freedom from poorly implemented farm subsidies is a fundamental right, and the fact that we would clearly consent to governments that did not offer that protection shows that the standard is inaccurate? Or is your argument that freedom from farm subsidies is clearly not a fundamental right, and the fact that you would not consent to a government that failed to protect you from them shows that lack of consent does not provide a clue to what is or is not a fundamental right?(Did that sentence make sense?)


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