How Should a Classical Liberal Society Count the Beliefs and Values of People Who Are Not Classical Liberals?

I have long been a libertarian, although the type of libertarianism that I follow has changed over time. Initially, I was a natural rights libertarian of the Nozickian type, but over time I became a consequentialist influenced by Friedrick Hayek and Richard Epstein. Over time, I also became more moderate moving from night watchmen state conception to a classical liberal position.

All of these positions more or less fall within the libertarian tradition broadly understood. But there is one issue where I believe that the tradition has not adequately taken matters into account. What does one do when others do not agree with libertarianism? Suppose that one is within a country with nonlibertarians. How should one live together?

The initial answer given by libertarians is that the people of differing views should live together and respect one another’s rights. In such a world, individual liberty allows everyone to pursue their values, and it is not necessary for one person to impose their values on others. While I find that convincing, let’s suppose that someone else does not accept the argument. They have a different understanding about the facts and/or values. They believe that free markets harm the poor and therefore should be restricted. Or they believe that people should be required to help the worse off, even if they do not want to.

The traditional libertarian response is to say to such people, “You are wrong to coerce others, and I will not let you do so, if I can stop you.” While this is a correct response from a narrow libertarian perspective, it is not clear that it is right from the broader perspective of social morality.

I look at the issue from the perspective of a welfare consequentialist (that is, a kind of utilitarian). Under that approach, people with nonlibertarian factual beliefs or values affect what the optimal institutions should be. Imagine, as I believe, that classical liberal institutions are the optimal ones from a welfare consequentialist perspective. They produce the greatest liberty and wealth for people in the society (and other goodies as well, but I shall ignore those in this post). So, for a society of classical liberals, those institutions would clearly be the best ones.

But now introduce a significant number of modern liberals (sometimes called welfare liberals), who believe in larger government and more redistribution than classical liberals do. How does that change the analysis of the optimal institutions?

From a welfare consequentialist perspective, there are at least two important consequences of the existence of welfare liberals. First, if welfare liberals strongly dislike the classical liberal institutions, then they are far less likely to support the system. In particular, if we assume that the constitution embodies these classical liberal principles, then the welfare liberals may become alienated from the polity. A polity needs its citizens to support its institutions and if the citizens strongly oppose the policy, they may not exhibit the necessary degree of support. Thus, additional support for the laws and constitution may be derived if there is a compromise between classical liberal and modern liberal institutions.

Second, if welfare liberals strongly dislike the classical liberal institutions, this will reduce their utility from the polity. The disutility of living under institutions that one does not like counts as part of citizen welfare. And this is true even if the disliked institutions are better at generating freedom and wealth. The classical liberals may believe that the views of modern liberals are based on mistakes about how the classical liberal institutions function. Or they may believe the modern liberals are wrong about the society’s obligations to the poor. But, whatever the cause, the modern liberals will be unhappy to a certain extent.

These factors – the reduced support for the institutions modern liberals and the disutility experienced by them – are relevant to a welfare consequentialist analysis of institutions. They suggest that the optimal institutions will less classically liberal, even if we assume that classical liberal institutions objectively produce the greatest liberty and wealth.

To generalize the point, there are two sets of considerations that one should attend to in designing optimal institutions. First, one should consider whether the institutions actually produce liberty and wealth. Second, one should consider how much support they enjoy from the people who they govern. While classical liberal institutions will, in my opinion, be the best under the first consideration, that will not be the case under the second consideration if a significant percentage of the public are not classical liberals.

Some people treat this second consideration as a compromise to political legitimacy as compared to moral legitimacy. But under my consequentialist analysis here, the argument is one of moral legitimacy. Or to put the point differently, an appropriate moral analysis treats considerations that might seem to be relevant to political legitimacy as matters of moral legitimacy.

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. Richard S says

    Excellent post. This argument also explains America’s founders and slavery, and, in states like Massachusetts, the founders on church establishments–to the degree that what Massachusetts had can truly be called an “establishment.”

  2. Kevin R. Hardwick says

    This post only explains the founders on slavery if one believes that they produced and adhered to the same logic as Mike develops here.

    Marvin Harris, the anthropologist, introduced a useful distinction. One can try to understand and alien culture–or by extension, one that existed in the past–by using the terms, ideas, values, and so on by which that culture understands itself. Harris introduced a jargon term to describe this interpretive stance (he called it “emic”) but that is beside the point–we can call it here the insider’s perspective.

    But Harris also pointed out that learned observers from the outside–economists, sociologists, political theorists–may very well have models for understanding the function and operation of society that would have made little sense to, say, a tribesman in New Guinea whose culture is the subject of observation. Outside models, like for example Consequentialism, Utilitarianism, Marxism, or whatever, can also be employed to understand an alien society. And we often learn a great deal by applying them. Harris called this outsider’s perspective “etic.”

    Mike’s analysis here implies an insider’s perspective. He asks what the person who is a classical liberal of the JS Mill type to do when analyzing her own society, and realizing that some of the people in it are not classical liberals. For this analysis to work, the person doing the analysis must possess an insider’s perspective of her society.

    But such an analysis cannot work for the Founders, because whatever else they were (some of them were Adam Smith liberals), they were not JS Mill liberals. This is because at the time of the Founding, the ideas of JS Mill had not yet been articulated–his thoughts had not yet been thought. So if we wish to understand the founding from an insider’s (emic) perspective, we have to look at what they actually said, and not try to interpret their actions from an outside perspective (etic) that is alien to their own understanding. JS Mill does not help us with this project.

    If you want to understand the compromises of the founding, and especially the compromise on slavery, I’d recommend in particular the superb recent analysis of David Hendrickson in his book PEACE PACT. The founders understood the union as necessary for security in the nation-state European system as it existed in 1787, and as it was understood at the time. They worried that internal political pressures would break up the union, and devolve it into several competing regional confederations. They understood slavery to be one of the major cleavages that existed in the union created by the Articles of Confederation, and they recognized that absent explicit provisions protecting slavery, the Deep South states would not ratify, and thus would exist on their own. The federalist nightmare scenario of regional confederations was the fear that produced the compromises over slavery–not the kinds of concernes that Mike articulates so eloquently and thoughtfully in his post above.

    One way of analyzing Mike’s post, in slightly different terms, is to consider the fact that utilitarianism is not the only ethical system that has significant numbers of adherants. One way of reframing Mike’s argument is to rephrase the question. What are the implications for Classial Liberalism if there are significant numbers of people in society committed to deontological ethics, or to Virtue ethics? Both of those ethical systems have distinguished intellectual pedigrees, and it is not at all certain that utilitarianism can rebut them convincingly. There is no slam-dunk case here. Absent such a slam-dunk argument, what is the Classical Liberal to do? As Mike points out, coercion is off the table, and rational argument does not seem to be able to carry the day. A very meaningful question for us–but a question that was utterly meaningless to the founders, as they understood themselves and the society in which they lived.

    All best wishes,

  3. Richard S says

    Hendrickson’s work is a good update of Onuf’s Origins of the Federal Republic.
    And we historians sometimes take historicism too far. We human beings are not infinitely creative. The tension between creating a political community that conforms to our principles and one that reflects the will of the people was not new with Mill. Moreover, that tension is especially great if one’s principles include the right of the people to make the laws under which they would live–a common idea among America’s founders.
    Did classical liberalism begin with Mill? That’s what I take to be the suggestion, and I don’t buy it. Similarly, I don’t think classical liberalism must be utilitarian.

    • gabe says


      I agree – but wonder if you could expand on that last comment as I am a little deficient in my understanding of this.

      take care
      Merry Christmas


  4. Kevin R. Hardwick says


    I read Mike’s original post as being written from an essentially utilitarian perspective. Do you read it differently?

    As to classical liberalism–I think anyone who knows the history of the enlightenment would agree that there are elements of the classical liberal synthesis in place by the late 17th century, perhaps earlier. But see for example Joyce Appleby’s analysis of 17th century English economic thought–I don’t think I’d wish to call the thinkers she describes “classical liberal.” It seems to me that the earliest thinker I am comfortable asserting has most of the pieces in place is Adam Smith. But when I read Mike’s post, I see a great many more nods to Mill than I do to Smith.

    You are correct that the “tension between creating a political community that conforms to our principles and one that reflects the will of the people” predates Mill. But I think you can see that same tension in Commwealthmen thought as described by Caroline Robbins and in Classical Republican thought as described by Bernard Bailyn and Gordon Wood–and neither of those traditions fits comfortably in the kind of classical liberalism that Mike is talking about.

    So if you take me to be suggesting that classical liberalism begins with Mill, then you are incorrect. But utilitarianism does, as does the principle of non-coercion–and both of those are pretty integral to what Mike is describing.

    All best,

  5. Kevin R. Hardwick says


    I did not mention Onuf because I presumed I was talking to an audience for whom he would be less familiar–but since I erred there, allow to me recommend the absolutely terrific book by Peter’s student George William Van Cleve, A SLAVEHOLDER’S UNION. To my eye it is the definitive contemporary study of slavery and the founding.

    Well wishes,

    • gabe says


      Now you’ve gone and done it again. Now I have to go get another book.
      Oh well, I am sure it will be worth it.

      By the way, your recommendation on Maier (?) was well worth it.

      Merry Christmas

  6. Richard S says

    My point was that it might make sense to consider this problem from a broader perspective, as a fundamental and inescapable one in a community dedicated to liberty. The different schools of thought within which it is considered narrow our perspective, and, sometimes, obscure examples of how Americans, and others, have wrestled with this problem in the past.
    Similarly, I have always thought that the concept of “ideology” narrowed our understanding of the past. The term was coined in the 1790s, and I’m not sure the concept is much older than that. Consider Bailyn, for example. Read his account of common law in Ideological Origins, and then read Coke. The hard separations Bailyn makes between legal and other modes of thought don’t hold together.

    • Kevin R. Hardwick says


      This makes sense to me–you are surely right about Bailyn. We have to find words to describe stuff, even when the stuff is much more nebulous than the words themselves can suggest. So I think your caution is spot on–the words we use to describe things can make the things we are trying to get at seem a whole lot more precise an unambiguous than they really were.

      Still–I take Mike’s point to hinge on the principle of non-coercion. So long as majorities feel no compunction about coercing minorities (absent those instances in which coercion is necessary to preserve liberty–for example when the state prevents me from beating up on those who displease me) then there is no problem. But once we introduce the the principle that people should be maximally free to act until or unless their actions infringe on the liberties of others, then the dilemma Mike describes emerges forcefully.

      I think one can find places at which the founders imply this libertarian principle–Madison’s Memorial and Remonstrance, for example. But I don’t think there was a consensus in its favor at the Philadelphia Convention. It seems to me that if we wish to understand the compromises of the Philadelphia Convention, slavery notable among them, consistently articulated libertarianism is not the place to start.

      I wish everyone peace and grace on this good day.

      All best,

    • Kevin R. Hardwick says


      It would be a nice thing to know with whom I am debating, as it seems at least possible that I know you. You certainly seem to know the secondary literature as well and likely better than do I–do drop me a line, if you feel so inclined?

      Well wishes,

  7. Snorri Godhi says

    This post illustrates some of the problems with utilitarianism.
    First, the fact that “liberals” want more government does not mean that they would actually be happier when they get it (as many Americans have been discovering in the last couple of months); so why should we give in to their wishes?
    Second, even if they would in fact be happier, why should I care? how much do they care for what I want? If I were a member of the ruling class, I’d have a moral and legal obligation to consider the wishes of the people, but I am not.

    Third, and most important, it is a mistake to look at the size of government as static: “the natural process of things is for liberty to yield, and government to gain ground”. Give them an inch today, they’ll want another inch tomorrow.

    Please note that these considerations are also consequentialist, but not utilitarian: more like Machiavellian.
    Actually, the best analysis of the growth of government that I am aware of, is in Ibn Khaldun: certainly not a libertarian, more like a Jihadist. But it doesn’t matter to me, since it’s the analysis that interests me.

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