Abstract
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.
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Notes
I will, for the most part, rely upon Rawls’s final statement of his views. I will do so in order to present his position as it had developed in response to many years of discussion and criticism.
Economic liberty, like any other sort of liberty, can be understood either as a class of freedoms, in which case it makes sense to use the singular form ‘economic liberty,’ or as a plurality of freedoms grouped together as a class, in which case it makes sense to use the plural form ‘economic liberties.’ I will use these two forms interchangeably unless otherwise specified.
My approach is thus quite different from that of Arnold (2013), who argues that Tomasi is wrong even in this basic respect.
Rawls (2001, p. 48) holds that the raising of the veil actually occurs through two distinct phases of increasingly specific and fact-dependent decision making, namely the constitutional phase and the legislative phase. We need not be concerned with this here, though.
An anonymous reviewer for this journal reminds me that the right to refrain altogether from religious activity is likely to be very valuable for non-religious persons. I grant this point.
In early work, Rawls (1971, p. 61) explicitly includes the right to hold personal property as a basic liberty. But in his final statement of his position, Rawls does not include such a right to personal property in his official list of basic liberties. However, since he does state that there is a right of personal property, since he calls it ‘basic,’ and since his treatment of it appears within a discussion of the basic liberties, I take him to mean that this right falls within the scope of the basic liberties. It is also worth noting that Rawls (1971, p. 272) endorses a right to pursue (though not, of course, to succeed at) any occupation that is permissible within the constitutional structure one’s society has erected within the scope of the two principles. However, as Cohen (2008, pp. 197–198) notes, the exact status of this right in relation to the basic liberties is not altogether clear.
Wall (2006, p. 264) is unconvinced that political liberties are basic at all, let alone worthy of special protection. Brennan (2012) has argued that political liberties are not very valuable for most people, and although he does not directly draw the inference, this would call into question the plausibility of Rawls’s claim that parties to the original position would select them as basic. I remain unconvinced by their arguments against the significance of the political liberties. However, my argument here does not depend on replying to them, as both hold that economic liberties are among the most valuable liberties.
Tomasi (2012, p. 248) describes the value of political liberties as having ‘zero-sum characteristics’. For two reasons, this description is not entirely felicitous. First, there is no reason to suppose that when one person’s economic or social power gives her political sway that prevents another person from having nearly as much political influence, there is not usually an increase in the absolute amount of political influence exerted. Second, the problem fair value protection seeks to address does not depend on there being only a static amount of political influence to go around, but rather only on some people having much less of it because others have more of it.
I follow Freeman (2007, p. 225) in my reading of Rawls on this point.
von Platz (2014) reads Tomasi as relying on a maximizing standard according to which a liberty should count as basic if it is necessary for maximizing the successful pursuit and development of one or both moral powers. He points out that the Rawlsian system instead utilizes a satisficing standard, according to which we should count as basic all and only those liberties that are necessary in order to adequately pursue and develop one or both moral powers, and he argues that there is good reason to stick with the satisficing standard instead of moving to a maximizing standard. I agree with von Platz about how to read Rawls on this point, and I agree that we should not opt for a maximizing standard instead. However, I think it is unnecessarily uncharitable to read Tomasi as relying on a maximizing standard. Although he does sometimes offer remarks suggestive of such a standard, he frequently employs satisficing language in this context as well; it seems most likely to me that Tomasi was simply less careful on this point that perhaps he should have been. Furthermore, even if Tomasi did mean to use a maximizing standard, he could have used a satisficing standard without altering any of his other views. For according to Tomasi, when our theory of justice fails to include economic liberties, we are not even close to dealing adequately with the essential role that economic liberty can and often does play in citizens’ development and pursuit of their conceptions of the good.
I thank John Lawless for bring to my attention the need to clarify this point.
For recent and influential support of this point, see Piketty (2014), esp. pp. 271–303.
Cowen (2014) grants that intra-societal inequality is on the rise, but urges that worldwide inequality is falling and that this is more important.
As Pettit (2012, p. 182) suggests, justice would require public structures of non-domination even for the holy members of Kant’s kingdom of ends, whose maxims accord fully with the demands of practical reason. For the absence of such structures would fail to accord proper respect to persons.
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Acknowledgments
For useful discussion and comments on earlier drafts of this paper, I would like to thank Derek Bowman, Daniel D'Amico, David Estlund, Thomas E. Hill, John Lawless, Douglas MacLean, Chris Melenovsky, Ram Neta, Gerald Postema, Kirun Sankaran, John Tomasi, and Jeppe von Platz, as well as an anonymous referee for this journal.
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Layman, D.M. The Fair Value of Economic Liberty. Res Publica 21, 413–428 (2015). https://doi.org/10.1007/s11158-015-9301-2
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DOI: https://doi.org/10.1007/s11158-015-9301-2