Rawls and bleeding heart libertarianism: how well do they mix?

• Author: Maloberti, Nicolas

Consequentialist concerns are altogether absent from the strictest strand of libertarianism, such as that of Murray Rothbard and Robert Nozick. It is only natural to wonder whether the appeal of this moral position would be the same if markets were to fail as frequently as their critics claim. The utilitarian strand's consequentialist concerns are, in contrast, too ubiquitous. In many important cases, individuals' rights do function as real constraints on the maximization of aggregate welfare. Distributive concerns, in turn, are present neither in the strictest strand of libertarianism nor in the utilitarian, classical liberal counterpart. Critics of capitalism might be factually mistaken in thinking that under such a system the rich get richer and the poor get poorer. But is their underlying concern morally irrelevant as those typical classical liberal positions would seem to imply? The novel research program of "bleeding heart libertarianism" is best understood as addressing these alleged deficiencies of the classical liberal tradition. In particular, bleeding heart libertarians believe that a convincing moral defense of free markets and minimal government, in addition to being grounded on a robust defense of individual sovereignty, must somehow also appeal to the benefits of those institutions for the worst-off members of society. John Tomasi's Free Market Fairness (2012) can be thought of as the most sophisticated formulation to date of the bleeding heart libertarian project.

Gary Chartier (2013) notes in his review of Free Market Fairness that it is likely to play an important role in shaping discussions of the nature and future of the liberal tradition. In this paper, I focus on what I take to be Tomasi's most important positive contribution: his reformulation of John Rawls's conception of justice along free-market lines.

I argue that Tomasi's most fundamental bleeding heart libertarian insights are not adequately served by Rawls's lexical framework and 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's conception of the first tasks of political philosophy might render Tomasi's case for laissez-faire forms of capitalism immaterial. The problem is that 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 a 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.

Tomasi and the Case for Bleeding Heart Libertarianism

As a matter of empirical fact, it is certainly possible that the set of institutions favored by libertarians and classical liberals would best satisfy the moral commitments held by modern liberals. In other words, roughly put, it is possible that a limited government with minimal redistribution and regulatory oversight will fare better in terms of improving the living conditions of the poor than would a highly regulatory and redistributive state. Some authors have argued along these lines (e.g., Cowen 2002; Lomasky 2005; J. Brennan 2007; Shapiro 2007). Tomasi, however, wants to distance himself from such an undertaking. He thinks that vital moral insights from the classical liberal side are not given the proper place they deserve by such arguments. For example, the value of economic liberty is recognized only in instrumental terms. The recognition of strong economic rights is merely a means for realizing a desired distribution of income. Tomasi stresses that his intention is to combine insights from the classical and modern liberal traditions "at the level of moral foundations" (2012, 95, subsequently cited by page number only). His project is to bring the fundamental moral ideas of both traditions into a "coherent philosophical framework" (xix).

Tomasi argues that the most compelling liberal theory would be a genuine hybrid. It would combine, at the level of principles, key elements of both the classical and the modern liberal traditions. The classical liberal tradition recognizes the fundamental value of economic liberty and appreciates the virtues of spontaneous orders in the pursuit of social goals. Yet, according to modern liberals, it fails to acknowledge "social justice" as the ultimate standard of political evaluation. Tomasi argues, however, that modern liberals' interpretation of that standard is defective precisely for failing to account for the value of economic liberty. Once such a standard of social justice is reinterpreted when this value is taken into account, the institutions of classical liberalism will realize social justice in ways that modern liberals' preferred institutions fail to do. Free Market Fairness is Tomasi's attempt to argue for the initial plausibility of this synthesis as well as for one particular understanding of it constructed within a Rawlsian framework. (1)

Tomasi understands economic liberty as including "powerful claims of freedom across the economic realms of working, consuming, and owning" (xxi). But social justice requires that "we seek social institutions that most improve the position of the poor" (xxi). Tomasi's general case in support of a research program characterized by a twofold commitment to economic liberty and social justice is grounded on two basic claims. First, contrary to what modern liberals hold, there are no convincing reasons to exclude economic liberty from the set of fundamental or basic liberties--a set that includes, for example, freedom of conscience, freedom of association, and civil liberties. Second, contrary to what classical liberals suggest, the definition of property rights cannot be completely independent of its expected distributional consequences.

Modern Liberalism and Economic Liberty

Modern liberals do not deny the value of all economic liberties. The right of occupational choice and the right to own personal property are, for example, included in Rawls's Liberty Principle. Rawls's argument for the inclusion of such economic liberties among the basic liberties has to do, roughly, with the importance they have if individuals are to have the capacity to assess their life options and choose a course of life as their own. This is undeniable. A society that allocates occupations to each citizen and denies private ownership rights over personal property fails to shelter citizens from domination from others and deprives them of important sources of identity, as Tomasi notes. This society cannot be plausibly described as a liberal society because individuals are precluded in very significant ways from pursuing their own conception of the good. In Tomasi's words, such a society "would truncate the ability of those people to be responsible authors of their own lives" (77). But Tomasi argues that "the same reasons high liberals offer in support of their preferred economic liberties apply with at least as much force to the aspects of economic freedom they wish to exclude" (76). (2)

If we agree that the right of occupation choice is essential to individuals' ability to select and pursue a particular conception of the good life, "the freedom to sell, trade, and donate one's labor looks equally essential for the same reasons" (77). If one is defined in important ways by the profession one pursues, one is also defined "by where one chooses to work, by the terms that one seeks and accepts for one's work, by the number of hours that one devotes to one's work, and much more besides" (77, emphasis in original). Individuals' capacity for "self-authorship" is thus truncated if such fuller freedoms of labor are not recognized. Similarly, attending to these same concerns, Tomasi claims that it is implausible to draw a distinction between personal property and productive property. If the ownership of personal property provides security, the same applies to the ownership of savings in the form of stocks and bonds, for example. It provides individuals and families with a measure of independence that might actually not be provided by the ownership of personal property alone. Ownership stakes in productive property is not, as critics of free markets believe, a privilege of economic elites: "it is a common experience of citizens in societies where such rights of ownership are affirmed" (78). A society where no private productive property is allowed also diminishes the range of projects that are available to citizens to pursue and deprives them of important sources of identity-casting relationships (77).

Some individuals will find private economic liberties more valuable than others in pursuing their own individual projects. Yet this is also true for religious liberties, and it does not disqualify them as proper components of a fully adequate scheme of liberal rights (81). A central liberal claim is that people have a fundamental interest in seeing themselves as central causes of the lives they are leading. This explains liberalism's placing the individual, rather than the community, as the fundamental source of moral demands. A robust conception of economic liberty, Tomasi concludes, must then be part of an adequate liberal scheme of basic rights. In part due to the phenomenon of economic prosperity, the capacity to pursue personal projects in...