The Harm Principle and Corporate Welfare (or Market Libertarianism vs. Promotionism)

• Author: Andrew Jason Cohen
• Position: Professor of Philosophy and Founding Director of the PPE Program at Georgia State University
• Pages: 787-812

The Harm Principle and Corporate Welfare

(or Market Libertarianism vs. Promotionism)

ANDREW JASON COHEN*

Andrew Jason Cohen is Professor of Philosophy and Founding Director of the PPE Program at

Georgia State University. He is the author of TOLERATION AND FREEDOM FROM HARM: L IBERALISM

RECONCEIVED (Routledge 2018) and TOLERATION (Polity 2014) as well as numerous articles.

Increasingly, he is looking at toleration (or the lack thereof) in our system of criminal law, in business

ethics, & other fields of applied ethics as well as at issues relating to free speech and civil discourse. He

blogs at https://radicalclassicalliberals.com; he previously blogged at http://www.bleedingheart

libertarians.com/. Acknowledgements: This is one of those papers with multiple iterations that involve

more than the normal rewriting—indeed, it includes multiple restarts following thoughts of jettisoning

the entire project. Given that, I will almost certainly forget to mention some of those who helped me

clarify my thinking. The following are some whom I am sure deserve—and have—my appreciation:

Andy Altman, Spencer Banzhaf, David Ciepley, Andrew I. Cohen, Seena Eftekhari, John Hasnas,

Garth Heutel, JP Messina, Dale Miller, Chris Surprenant, James Taggart, Matt Zwolinski and

participants at the Georgetown Institute for the Study of Markets and Ethics 2020 Conference,

especially Sahar Akhtar, Bill English, Harrison Frye, Lisa Heinzerling, Andrew Morris, Alexander

Reese, and Geoff Sayre-McCord. © 2021, Andrew Cohen.

ABSTRACT

I aim in this paper to provide a defense of one way to look at what should be

regulated in the marketplace. In particular, I discuss what should be tolerated

and argue against corporate welfare. I begin by endorsing John Stuart Mill’s

harm principle as a normative principle of toleration. I label as “market liber-

tarianism” the strict commitment to the harm principle when considering the

regulatory structure of markets and juxtapose this concept against promotion-

ism, the view that endorses government interference to promote business inter-

ests. I next discuss the widespread use of promotionist policies, arguing against

them and instead for market libertarianism. I also consider critiques of my

view, recognizing that one of my responses may leave some thinking the paper

is a reductio of the market libertarian view because of the slow-growth state it

endorses. Others will recognize it as a view promoted by some of the U.S.

founding fathers and find it attractive in its own right.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 788

I. MOTIVATING THE VIEW AND CLEARING THE PATH . . . . . . . . . . . . . 790

II. MARKET LIBERTARIANISM: MORAL COMMITMENT TO THE STRICT

VERSION OF THE HARM PRINCIPLE . . . . . . . . . . . . . . . . . . . . . . . . . 792

III. PROMOTIONISM: DEPARTURES FROM TOLERATION FOR BUSINESS . . 796

*

787

IV. FOR MARKET LIBERTARIANISM . . . . . . . . . . . . . . . . . . . . . . . . . . . 801

V. MARKET LIBERTARIANISM’S POLITICAL PROBLEMS AND A DEEPER

PROBLEM . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 804

VI. FINAL CONSIDERATIONS AND A PARTIAL FIX . . . . . . . . . . . . . . . . . 807

INTRODUCTION

Contemporary philosophical discussions of economic arrangements generally

involve talk of positive and negative rights.

1

Some defend negative rights meant

to prevent anyone from forcibly having to sacrifice property for the benefit of

others. Others defend both limited negative rights and limited positive rights to

the goods needed to have a decent life. In my view, there is a better, perhaps

older,

2

way to discuss the issue: to simply discuss what, morally, should be per-

mitted in markets—that is, to discuss what principle or principles should be seen

as justifying regulation of market activities.

Focusing directly on the question of what sorts of business transactions should

be permitted may not fully replace questions about rights or what sorts of wealth

individuals should be allowed to accumulate. However, it is a more basic ques-

tion—at least if one believes that people should be free to do as they wish so long

as they do not violate moral or legal rules. That topic, though, is too large for one

paper; my narrower focus is on what is permissible in government regulation of

markets. I will investigate this question by considering how a state that adopts

John Stuart Mill’s harm principle would interact with business entities. That prin-

ciple reads:

The sole end for which mankind are warranted, individually or collectively, in

interfering with the liberty of action of any of their number is self-protection . . .

the only purpose for which power can be rightfully exercised over any member

of a civilized community, against his will, is to prevent harm to others.

3

1. In other venues, the conversation involves the different pairing of welfare and economic rights.

2. In the middle of the last century, it was more common to argue about the overall economic system

of a state with less attention to individuals’ rights. In 1940, for example, the political economist Walter

Sulzbach argued for toleration of a broad array of economic freedoms to defend democracy and laissez

faire economics over socialism. Walter Sulzbach, Tolerance and the Economic System, 50 ETHICS 290

(1940). He wrote, I think correctly, that “[i]n no country at the present time is absolute noninterference

in economics the policy of the government. The democracies . . . have turned their backs on the

teachings of Smith, Ricardo, and Mill and are regulating economic life to a far greater degree than was

the case eighty years ago.” Id. at 310–11. He continued: “there is a connection between the vanishing of

laissez faire and the decay of intellectual tolerance.” Id. Elements of this view can be traced at least to

Adam Smith in the eighteenth century. Whatever problem it was in 1940, it is clearly a problem now.

3. JOHN STUART MILL, ON LIBERTY 9 (Elizabeth Rappaport ed., 1978) (1859).

788 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 19:787