In Free Market Fairness, John Tomasi argues that a wider range of private economic freedoms should be included amongst the high liberal set of basic rights than is normally thought. The topic of this paper is not primarily Tomasi’s own views, but a view that has emerged in the critical literature responding to Tomasi, consideration of which has so far been neglected. This view holds that whilst the specific private economic freedoms Tomasi proposes should be rejected, certain ‘weak’ private economic (...) freedoms should be included amongst the high liberal basic rights. In the paper, I critically assess (and reject) one version of this position, which claims that Rawlsian high liberals ought to accept a weak basic right to privately own productive property. (shrink)

ABSTRACTThe ten essays in this symposium offer a rich and varied set of challenges to the market-democratic research program. Rather than replying to each critic in turn, I respond only to the main lines of critical challenge raised in this collection: that my account of thick economic liberty is too vague, that economic liberties are not basic, that market democracy gives too little attention to socialist possibilities, that market democracy can accommodate only an impoverished conception of fair equality of opportunity, (...) and, most notably, that market democracy is grounded upon a tendentious or “bourgeois” conception of the person. To meet these criticisms, I refine a central claim of market democracy: that the right to private ownership of productive property is a basic right. In response to the worry that market democracy allows for class domination, I revise market democracy on the issue of bequests. After replying to the critics I extend my challenge to social democracy, presenting an historical argument against liberal democratic socialism. (shrink)

We characterize, more precisely than before, what Rawls calls the “analytical” method of drawing up a list of basic liberties. This method employs one or more general conditions that, under any just social order whatever, putative entitlements must meet for them to be among the basic liberties encompassed, within some just social order, by Rawls’s first principle of justice (i.e., the liberty principle). We argue that the general conditions that feature in Rawls’s own account of the analytical method, which employ (...) the notion of necessity, are too stringent. They ultimately fail to deliver as basic certain particular liberties that should be encompassed within any fully adequate scheme of liberties. To address this under-generation problem, we provide an amended general condition. This replaces Rawls’s necessity condition with a probabilistic condition and it appeals to the standard liberal prohibition on arbitrary coercion by the state. We defend our new approach both as apt to feature in applications of the analytical method and as adequately grounded in justice as fairness as Rawls articulates the theory’s fundamental ideas. (shrink)

While John Tomasi's Free Market Fairness is ambitious, provocative, and does much to reinvigorate debate about economic justice, his argument for market democracy is not compelling. I discuss two objections. First, I offer doubts about whether “thick” economic freedom is a condition of democratic legitimacy. While Tomasi raises the intriguing possibility that liberal commitments may justify a somewhat more expansive list of economic rights than traditionally recognized, he fails to give a well-worked-out account of these rights. Instead, he argues for (...) unfettered economic liberty without adequately connecting it to citizens' self-authorship, or showing how it could feasibly be protected alongside other basic liberties. Second, I argue that a concern for citizens' agency and economic self-authorship should lead us to endorse a social-democratic regime, not a market-democratic one. Market democracy leaves out or heavily revises key aspects of justice as fairness as developed by Rawls, including fair equality of opportunity and the fair value of the political liberties. Moreover, while Tomasi claims that social democracy rests on a perfectionist prioritizing of citizens' status over their agency, I argue that social democracy is best defended on agency-based grounds. (shrink)

Are political and economic rights equally basic? This is one of the main issues liberal egalitarians and classical liberals disagree about. The former think political rights should be more strongly protected than economic ones; classical liberals thus accuse them of an unjustified and politically biased ‘economic exceptionalism’. Recently, John Tomasi has developed a special version of this challenge, which is targeted against Murphy and Nagel’s account of the relationship between property rights and just taxation. In this paper, I analyze this (...) challenge, and provide an account of its limitations. Tomasi’s strategy to drive Murphy and Nagel’s account into an overgeneralization problem brings to light that liberals weren’t guilty of any kind of economic exceptionalism in the first place. However, this also shows that classical liberalism and libertarians do not disagree as much as it might seem. (shrink)

The first principle of Rawls’s conception of justice secures a set of ‘basic liberties’ equally for all citizens within the constitutional structure of society. The ‘worth’ of citizens’ liberties, however, may vary depending upon their wealth. Against Rawls, Cohen contends that an absence of money often can directly constrain citizens’ freedom and not simply its worth. This is because money often can remove legally enforced constraints on what citizens can do. Cohen’s argument – if modified to apply to citizens’ ‘moral (...) powers’ rather than ‘negative liberty’ – threatens a core feature of Rawls’s conception of justice, as it is unclear why the parties within the ‘original position’ would endorse the lexical priority of the first principle over the ‘difference principle’ if both principles similarly shape citizens’ freedom. I concede Cohen’s point regarding the relation between freedom and money but argue that it is not fatal to Rawls’s conception of justice if the ‘basic needs principle’ is understood to enjoy lexical priority over the first principle and is modified to include a right to adequate discretionary time. Nonetheless, Cohen’s argument helpfully highlights the infelicitous nature of Rawls’s terminology with respect to liberty: the basic needs principle, the first principle and the difference principle all should be understood as shaping citizens’ freedom to exercise their moral powers. (shrink)

The main question dividing classical and high liberals is about how economic rights rank compared to other rights and public goals. That is, the question is about what can or cannot outweigh such rights. High liberals argue that economic rights can be outweighed by any legitimate state interest, such that they are prima facie rights. Neoclassical liberals, conversely, have recently sought to elevate economic rights to basic rights, which could then only be outweighed by other basic rights. This paper shows (...) where the real debate should be for classical liberals, challenging Samuel Freeman’s widely held distinction between classical and high liberalism. Economic rights are prima facie for all liberals in that they can be outweighed by, say, considerations of utility or social justice. Although neoclassical liberals are correct to say that such rights are much more important than high liberals normally recognize, it does not follow that economic rights are basic. (shrink)

Most criticism and exposition of John Rawls’s political theory has focused on his account of distributive justice rather than on his support for liberalism. Because of this, much of his argument for protecting the basic liberties remains under explained. Specifically, Rawls claims that representative citizens would agree to guarantee those social conditions necessary for the exercise and development of the two moral powers, but he does not adequately explain why protecting the basic liberties would guarantee these social conditions. This gap (...) in his argument leads to two problems. First, the Rawlsian argument for the priority of liberty would fail if the gap could not be filled. His argument would still support the protection of individual freedoms, but these freedoms would be treated like other primary goods and regulated by the difference principle. Second, without a full argument, there is not sufficient reason to favor Rawls’s left-liberal conception of the basic liberties over a more right-leaning conception that would prioritize the protection of free-market rights. To address these two problems, this paper fills in the gap in order to better explain Rawls’s full argument for egalitarian liberalism. (shrink)

In Free Market Fairness, John Tomasi tries to show that ‘thick’ economic liberties, including the right to own productive property, are basic liberties. According to Tomasi, the policy-level consequences of protecting economic liberty as basic are essentially libertarian in character. I argue that if economic liberties are basic, just societies must guarantee their fair value to all citizens. And in order to secure the fair value of economic liberty, states must guarantee that citizens of roughly similar dispositions and talents are (...) roughly equally able to use their economic liberties to develop and pursue a conception of the good. This, I will argue, is a very demanding standard that requires aggressive taxation and redistribution. (shrink)

ABSTRACTJohn Tomasi's Free Market Fairness claims to provide a principled defense of classical-liberal institutions. Respect for the development of our moral powers or “self-authorship,” according to Tomasi, requires that we make certain economic liberties basic, including freedom of contract and the right to accumulate property. Yet Tomasi's principles and his institutions are at odds. Tomasi has provided ethical grounds for defending not classical-liberal but radical-democratic, even socialist, economic freedoms. This is most vivid in Tomasi's account of the “liberties of working.” (...) He argues that it is not just the choice of work but control of the workplace experience that is a vital part of our self-authorship. If this is true, Tomasi has not given a defense of a robust right to “freedom of contract,” but rather of those rights of control over work and property that leftists have long argued for. (shrink)

The revival of classical liberal thought has reignited a debate about economic freedom and social justice. Classical liberals claim to defend expansive economic freedom, while their critics wish to restrict this freedom for other values. However, there are two problems with the role ‘economic freedom’ plays in this debate: inconsistency in the use of the concept and indeterminacy with respect to its definition. Inconsistency in the use of the concept ‘freedom’ has mistakenly made a certain kind of ‘left-wing’ critique of (...) poverty, and of markets generally, appear to be a concern with inequality in means to enjoy freedom, not with freedom itself. Indeterminacy about which beings and doings the basic liberties protect misrepresents the left-wing position as about something other than economic freedom. Inconsistency and indeterminacy lead to artificial narrowness in current debates and to a failure to see that disagreement is based not just on moral differences but also on conceptual confusion. This confusion leads both classical liberals and their critics to claim more than they may legitimately do, and to ignore a position that accepts the standard of definition of freedom but arrives at different institutional conclusions about what secures that freedom. (shrink)

Recent arguments for the basic status of economic liberty can be deployed to show that all liberty is basic. The argument for the basic status of all liberty is as follows. First, John Tomasi’s defense of basic economic liberties is successful. Economic freedom can be further defended against powerful high liberal objections, which libertarians including Tomasi have so far overlooked. Yet arguments for basic economic freedom raise a puzzle about the distinction between basic and non-basic liberties. The same reasons that (...) economic liberties and the traditionally defined list of basic liberties are basic can also be given for all other liberties. Therefore, high liberals and Rawlsian libertarians ought to accept almost all other liberties as basic, even liberties that may strike us as trivial, silly, or unimportant. This claim has revisionary implications for high liberalism. Namely, liberals should endorse strong institutional protections for almost all liberties, even at the expense of other social values. (shrink)

We can imagine agents who would have the moral status to demand contractualist justification but still lack an especially strong claim against interference. In contrast, agents who can conceive of their lives in a temporally unified way have a distinctive, strong interest in non‐interference. This contrast helps illuminate the moral importance of self‐authorship. The upshot is that ordinary persons have a more general and less variable right against interference than is often supposed. Self‐authorship can also help appreciate the sense in (...) which the value of persons may be characterized as ‘self‐existent’. (shrink)

In this paper we take issue with two central claims that John Tomasi makes in Free Market Fairness. The first claim is that Rawls’s difference principle can better be realized by free market institutions than it can be by state interventionist regimes such as property-owning democracy or liberal socialism. We argue that Tomasi’s narrow interpretation of the difference principle, which focuses largely on wealth and income, leaves other goods worryingly unsatisfied. The second claim is that a wide set of economic (...) liberties ought to be protected because they realize responsible ‘self-authorship.’ We argue that this claim also fails because, crucially, whether economic liberties serve individuals in pursuing their ambitions will depend on the nature of those ambitions and how the use of those liberties by others would affect their pursuit of them. If an expansion of liberty is good for us in some ways, but bad in others, we need to assess whether, all things considered, we would be better off with or without such expanded economic rights. We argue that the expansion Tomasi proposes is likely to fail this test. (shrink)

In Rawlsian political philosophy, “basic liberties” are rights subject to a high degree of protection, such that they cannot easily be overridden for concerns of stability, efficiency, or social justice. For Rawls, something qualifies as a basic liberty if and only if bears the right relationship to our “two moral powers”: a capacity to form a sense of the good life and a capacity for a sense of justice. However, which rights are basic liberties is subject to frequent ideological debate, (...) which Rawlsian libertarians and Rawlsian socialists arguing that Rawls's own view is mistaken or incomplete. I argue that problem is that Moral Powers Test does not quite work. Only a small amount of liberty—not enough to qualify a society as liberal—can clearly be shown to pass the Moral Powers Test. One might attempt to rescue the Moral Powers Test by relaxing or modifying its requirements, but, I will argue, there appears to be no unproblematic and nonquestion‐begging way to do so. The Moral Powers Test must be abandoned or, at least, requires some unknown but radical revision or require supplements from outside Rawls's own theory. (shrink)

In this article, I aim to clarify some key issues in the ongoing debate about the relationship between Rawlsian political philosophy and business ethics. First, I discuss precisely what we ought to be asking when we consider whether corporations are part of the “basic structure of society.” I suggest that the relevant questions have been mischaracterized in much of the existing debate, and that some key distinctions have been overlooked. I then argue that although Rawlsian theory’s potential implications for business (...) ethics are more extensive than some have suggested, the nature of the concern that we ought to have about the effects of corporate behavior on individuals’ economic and social conditions should lead us to reject the view that corporations are bound by principles of justice only if, and insofar as, they are part of the basic structure. (shrink)

To be a liberal is, among other things, to grant basic liberties some degree of priority over other aspects of justice. But why do basic liberties warrant this special treatment? For Rawls, the answer has to do with the allegedly special connection between these freedoms and the ‘two moral powers’ of reasonableness and rationality. Basic freedoms are said to be preconditions for the development and exercise of these powers and are held to warrant priority over other justice-relevant values for that (...) reason. In the first half of the article I mount an internal critique of this Rawlsian line, arguing that it is flawed in two main ways. First, it overestimates the contribution of basic freedom to moral personality. Second, it underestimates the contribution of non-liberty resources to moral personality. In the second half of the article I repair these flaws. The result is a new, intriguingly radical version of justice as fairness, one with surprising—yet plausible—implications for economic and gender justice. (shrink)

I argue that Tomasi’s most fundamental “bleeding heart libertarian” insights are not adequately served by Rawls’s lexical framework and his idealized theory of institutional choice. Perhaps paradoxically, using Rawls’s lexical framework to articulate Tomasi’s declared concerns for both economic liberty and “social justice” gives the latter concern very little weight. For that reason, Tomasi’s own objections against classical liberalism would ultimately apply to his own positive contribution as well: the satisfaction of a distributional adequacy condition is secured on purely contingent (...) grounds. Furthermore, Tomasi’s endorsement of Rawls’ conception of the first tasks of political philosophy might render his case for laissez-faire forms of capitalism immaterial. This is because Rawls fails to appreciate the very narrow theoretical relevance of identifying institutional arrangements purely as a matter of “ideal theory”. Feasibility concerns have always been an important element in the classical liberal critique of interventionist and redistributive politics. Yet they have invariably failed to be featured, in any theoretically prominent way, within the most philosophically oriented defenses of the classical liberal order. A formulation of bleeding heart libertarianism along Rawlsian lines would be equally wanting in this regard. (shrink)