Why Free Market Rights are not Basic Liberties

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  1. 1.

    We do not use the phrase “economic liberties,” as Tomasi does, because it does not distinguish between the “economic rights” defended by classical liberal and those defended by socialists.

  2. 2.

    For more on the typical argument for protecting classical liberal rights, see Samuel Freeman’s “Capitalism in the Classical and High Liberal Traditions,” Social Philosophy and Policy, Vol 28, No. 2 (2011), 19–55.

  3. 3.

    Tomasi, John. Free Market Fairness (Princeton, NJ: Princeton University Press, 2012). In a summary article, he writes “The claim stands or falls on the strength of the arguments that can be brought forth to show that these economic liberties, like the other basic liberties, are essential preconditions to citizens exercising their moral powers.” John Tomasi, “Democratic Legitimacy and Economic Liberty,” Social Philosophy and Policy, Vol. 29, No. 01, (2012), 77–78.

  4. 4.

    Such an argument would be especially striking because Rawls explicitly denies that questions about economic rights are settled by principles of justice. Rawls, John. Political Liberalism (New York: Columbia University Press, 1996), 298.

  5. 5.

    e.g. Tomasi, Free Market Fairness, 248. Also, “Reply to Samuel Freeman: Thick Economic Liberties” on Bleeding Heart Libertarians, June 2012, http://bleedingheartlibertarians.com/2012/06/reply-to-samuel-freeman/.

  6. 6.

    e.g. Tomasi, Free Market Fairness, 74–75, 90, 181, 236.

  7. 7.

    e.g. ibid, 79–84; 183.

  8. 8.

    e.g. ibid, 289 no. 64.

  9. 9.

    e.g. ibid, 83.

  10. 10.

    Friedman, Milton. Capitalism and Freedom (Chicago: University of Chicago Press, 1962) Ch. 2. Nickel, James. “Economic Liberties,” in The Idea of a Political Liberalism, ed. Victoria Davion and Clark Wolf (Lanham, Maryland: Rowman and Littlefield Publishers, 1998).

  11. 11.

    See Dewey, John. Liberalism and Social Action, 1963; and Dworkin, Ronald. Justice for Hedgehogs, (Cambridge, MA: Harvard University Press, 2011), 352–354.

  12. 12.

    Rawls, Political Liberalism, 299–304.

  13. 13.

    ibid, 310–324.

  14. 14.

    This should not be understood as the claim that protecting these liberties is sufficient to guarantee the development and exercise of the two moral powers.

  15. 15.

    Tomasi often talks as though the economic liberties are necessary for full exercise and adequate development of the two moral powers, but that would mean that persons in most Western countries neither have adequately developed nor can fully exercise their two moral powers. We assume that Tomasi does not intend this, so we take it that Tomasi would agree with this interpretation of Rawls.

  16. 16.

    We recognize that certain freedoms might be constitutive of “autonomy,” but we would not say that either the basic liberties or the social conditions protected by the liberties constitute the two moral powers. The moral powers consist in certain mental capacities that may or may not be exercised, given the social conditions. Social conditions might be constitutive of autonomy in a way that they are not constitutive of the moral powers because being autonomous seems to require a successful exercise of autonomy whereas having the moral powers does not require the successful exercise of these powers. Regardless of whether the social conditions constitute the moral powers, we believe our arguments against Tomasi go through. So, those who disagree with us on this point can still agree with our core argument. We thank an anonymous commentator for bringing this question to our attention.

  17. 17.

    Rawls, Political Liberalism, 291. A similar approach is taken at various points in Rawls’s other work, see Collected Papers, 259–260, 313, 366, 417.

  18. 18.

    “I begin by arranging the basic liberties so as to show their relation to the two moral powers and to the two fundamental cases in which these powers are exercised. The equal political liberties and freedom of thought are to secure the free and informed application of the principles of justice, by means of the full and effective exercise of citizen’s sense of justice, to the basic structure of society…Liberty of conscience and freedom of association are to secure the full and informed and effective application of citizens powers of deliberative reason to their forming, revising, and rationally pursuing a conception of the good over a complete life.” Rawls, Political Liberalism, 334–335.

  19. 19.

    Tomasi, Free Market Fairness, 66, 78. Tomasi articulates other conceptions of the good or plans of life that require free market rights, such as the life of a stockbroker. See, ibid. at 79.

  20. 20.

    “No society can include within itself all forms of life. We may indeed lament the limited space, as it were, of social worlds, and of ours in particular; and we may regret some of the inevitable effects of our culture and social structure. As Berlin has long maintained (it is one of his fundamental themes), there is no social world without loss: that is, no social world that does not exclude some ways of life that realize in special ways certain fundamental values.” Rawls, Political Liberalism, 197.

  21. 21.

    In §5 of “The Basic Liberties and Their Priority,” Rawls appeals to the fact that persons care deeply about their religious, philosophical and moral beliefs as a consideration in favor of protecting freedom of conscience. Yet, Rawls is not making the Argument from Particular Interest for two reasons. First, freedom of conscience is talked about as valuable for each and every individual. Rawls supposes that all persons have a “view of their relation to the world” that grounds their particular ends and loyalties (Political Liberalism, 310). Second, Rawls explicitly says that, “strictly speaking, this first ground for liberty of conscience is not an argument” (ibid., 311). Instead, it is a way to highlight the deep motivation that persons have to live a life of their own. In the text, the more complete argument follows this passage.

  22. 22.

    Tomasi, Free Market Fairness, 248. Also, “whatever powers-protecting test (PPT) we apply in one domain of activity presumptively applies in other domains of activity as well” Tomasi, “Reply to Samuel Freeman.”

  23. 23.

    Tomasi, “Reply to Samuel Freeman: Thick Economic Liberty,” http://bleedingheartlibertarians.com/2012/06/reply-to-samuel-freeman/.

  24. 24.

    We thank an anonymous commentator for showing us the need to clarify this point.

  25. 25.

    Tomasi, Free Market Fairness, 236. See also, pp. 75, 90, 181 and “Democratic Legitimacy,” 66.

  26. 26.

    We recognize that we have not proved that freedom of association, freedom of thought and freedom of religion are sufficient for protecting evaluative horizons, but we cannot offer such a proof without more information on what would make evaluative horizons sufficiently broad. Even if these three freedoms are not adequate, however, it is not apparent how protecting free market liberties would be all that is additionally needed. It seems more likely that we would need to determine what the best institutional arrangement that provide for sufficiently broad horizons is, and that is concern for constructing the coherent scheme of liberties and not the list of basic liberties (see §5.1). For this reason, the force of our objection is to put the burden of proof on Tomasi. He would need to show why protecting free market rights is the key to providing sufficiently broad evaluative horizons. Thanks to an anonymous commentator for pushing us on this point.

  27. 27.

    At times, Tomasi seems to presume that any diminution of evaluative horizons is unacceptable (e.g. Free Market Fairness, 77).

  28. 28.

    See Von Platz, Jeppe. “Are Economic Liberties Basic Rights?” Politics, Philosophy, and Economics, Vol. 13, No. 1, (2014), 23–44.

  29. 29.

    For a similar point, see Rawls, Political Liberalism, 333.

  30. 30.

    Our emphasis. Tomasi, Free Market Fairness, 183. C.f. (ibid. at 80–81) (“Democratic Legitimacy” 69–71).

  31. 31.

    see fn. 18.

  32. 32.

    Here, the basic idea is that the final two liberties block social condition that tend to undermine the protections provided by the other basic liberties. These final two liberties do not guarantee conditions that are necessary for the exercise and development of the two moral powers because persons can develop the moral powers without these social conditions. In this way, rule of law and freedom of the person provide for a more stable guarantee of the social condition that are necessary for exercise and development of the moral powers without themselves guaranteeing social condition that are necessary.

  33. 33.

    Nickel, “Economic Liberties”.

  34. 34.

    Nickel actually has two arguments for protecting economic liberty in that article, but insofar as Tomasi is adopting the Rawlsian framework, he would not to appeal to the second argument because its relies on a perfectionist ideal of autonomy.

  35. 35.

    Nickel, “Economic Liberties,” 157.

  36. 36.

    Nickel, “Economic Liberties,” 158.

  37. 37.

    Tomasi does accept the difference principle and makes a separate argument that free market rights would actually satisfy the difference principle. Insofar as our concern is with his argument for the claim that free market rights ought to be basic liberties, we do not address these arguments here. See Tomasi. Free Market Fairness, Chapter 8.

  38. 38.

    Tomasi, Free Market Fairness, 83. c.f. “Democratic Legitimacy” 70–71, 73–74.)

  39. 39.

    Tomasi himself seems also to deny this more extreme position in his response to Samuel Freeman’s arguments in “Reply to Samuel Freeman”.

  40. 40.

    Rawls, Political Liberalism, 290.

  41. 41.

    “The criterion at later stages is to specify and adjust the basic liberties so as to allow the adequate development and the full and informed exercise of both moral powers in the social circumstances under which the two fundamental cases arise in the well-ordered society in question. Such a scheme of liberties I shall call ‘a fully adequate scheme.’” Rawls, Political Liberalism, 333.

  42. 42.

    see Rawls, Political Liberalism, 335–338. We think it best to identify “the significance” of a liberty as a feature of those liberties in the coherent scheme. What significance it has is specified by the extent to which it captures the “central range of application” of a liberty on the list of basic liberties.

  43. 43.

    ibid, 340.

  44. 44.

    Rawls, Political Liberalism, 340–356.

  45. 45.

    emphasis added. Rawls, Political Liberalism, 298.

  46. 46.

    see Rawls, Political Liberalism, 331–334.

  47. 47.

    Tomasi, Free Market Fairness, 42–43, 90, 220. Also, “Democratic Legitimacy” 57–58, 64. Often, this takes the form of a burden shifting argument, as in Tomasi, “Reply to Samuel Freeman: Thick Economic Liberty,” 2–3, Free Market Fairness 76–79.

  48. 48.

    Rawls, Political Liberalism, 336.

  49. 49.

    For a more extensive argument on how Tomasi’s position is difficult to reconcile with the other requirement in an adequate scheme of liberties, see Freeman, Samuel. “Can Economic Liberties be Basic” in Bleeding Hearts Libertarians, June 13th, 2012. http://bleedingheartlibertarians.com/2012/06/can-economic-liberties-be-basic-liberties.

  50. 50.

    Rawls, Political Liberalism, 327.

  51. 51.

    Tomasi, Free Market Fairness, 252.

  52. 52.

    This is one of the arguments that Rawls appeals to in arguing against laissez-faire capitalism and welfare state capitalism. Rawls, John. Justice as Fairness: A Restatement, (Cambridge, MA: Harvard University Press, 2001), 138.

  53. 53.

    Tomasi aims to respond to these arguments by arguing that a government that protects economic privileges better protects the fair value of the political liberties than a government that does not (Tomasi, Free Market Fairness, 252–253). Yet, this view ignores the way monied interests would not only influence the legislatures but also regulators and judges.

  54. 54.

    “Right-Wing Rawlsianism: A Critique” The Journal of Political Philosophy (not yet published).

  55. 55.

    See Rawls, Political Liberalism, 299–304.

  56. 56.

    Tomasi, Free Market Fairness, 83, c.f. Tomasi, “Democratic Legitimacy” 50, 73.

  57. 57.

    Tomasi, Free Market Fairness, 95, 102–103

  58. 58.

    Such as when Tomasi cites Charles Murray to claim that “programs for universal provision of social goods ‘takes the trouble out of life’…the model ‘drains too much of the life from of life.” Tomasi, Free Market Fairness, 80.

  59. 59.

    We would like to thank Samuel Freeman, K.C. Tan, Chad Van Schoelandt, and anonymous reviewers for their comments on earlier drafts. Additionally, we would like to thank Doug Weck, Collin Anthony and the UPenn graduate group generally for many helpful discussions on these issues.

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Correspondence to C. M. Melenovsky.

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C.M. Melenovsky and Justin Bernstein have contributed equally to this paper.

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Melenovsky, C.M., Bernstein, J. Why Free Market Rights are not Basic Liberties. J Value Inquiry 49, 47–67 (2015). https://doi.org/10.1007/s10790-014-9450-0

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  • Social Condition
  • Personal Property
  • Free Market
  • Fundamental Interest
  • Life Plan