DEMOCRATIC LEGITIMACY AND ECONOMIC LIBERTY*
Published online by Cambridge University Press: 14 December 2011
Libertarians and classical liberals typically defend private economic liberty as a requirement of self-ownership or on the basis of consequentialist arguments of various sorts. By contrast, this paper defends private economic liberty as a requirement of democratic legitimacy. In recent decades, many philosophers have converged upon a certain view about political justification. If a set of social institutions is to be just and legitimate, those institutions must be acceptable in principle to the citizens who are to lead their lives within them. This deliberative or democratic approach to justification is traditionally associated with thinkers on the left who are skeptical of the importance of private economic liberty. This article shows how the protection of private economic liberty is a requirement of citizens' developing and exercising the moral powers they have as democratic citizens. Democratic legitimacy does not require the affirmation of absolute economic liberty rights as sometimes defended by libertarians. But democratic legitimacy does require that a wide range of private economic liberties be meriting constitutional protection on a par with the civil and political liberties of democratic citizens. This opens the way for a wider defense of classical liberalism based upon the idea of democratic legitimacy.
- Research Article
- Social Philosophy and Policy , Volume 29 , Issue 1 , January 2012 , pp. 50 - 80
- Copyright © Social Philosophy and Policy Foundation 2012
1 Tomasi, John, Free Market Fairness (Princeton, NJ: Princeton University Press, forthcoming, 2012)CrossRefGoogle Scholar.
2 The term “high liberal” was coined by Freeman, Samuel, “Illiberal Liberals: Why Libertarianism Is Not a Liberal View,” Philosophy and Public Affairs 30, no. 2 (2001): 105–51CrossRefGoogle Scholar.
4 Hayek, F. A., The Constitution of Liberty (Chicago: University of Chicago Press, 1960)Google Scholar.
6 Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 17Google Scholar; and Rawls, John, A Theory of Justice, revised edition, (Cambridge, MA: Harvard University Press, 1999), 16Google Scholar.
7 Gaus, Gerald, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World (New York: Cambridge University Press, 2011)Google Scholar.
8 Rawls, Theory of Justice, 102. This phrase was deleted from the revised edition. For an interesting discussion of this change see Lomasky, Loren's “Libertarianism at Twin Harvard,” Social Philosophy and Policy 22 (2005): 178–99CrossRefGoogle Scholar.
9 Imagine a classical liberal position that affirms a strong set of private economic liberties on grounds of economic efficiency, but affirms a tax-funded social safety net as a requirement of beneficence. (Milton Friedman is sometimes interpreted as having defended a version of classical liberalism exhibiting this structure.) The justification for this position would not be strongly principled.
10 Obviously, there are other logically coherent approaches available here. For example, one might seek to justify a concern for social justice in terms of the same foundational ideas by which libertarians or classical liberals commonly defend the priority of economic liberty. That is not my project.
11 Hohfeld, Wesley Newcomb. Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven, CT: Yale University Press, 1964)Google Scholar. See also Becker, LawrenceProperty Rights: Philosophical Foundations (Boston, MA: Routledge & Kegan Paul, 1977), 11–21Google Scholar.
12 Nickel, James, “Economic Liberties” in The Idea of a Political Liberalism: Essays on Rawls, ed. Davion, Victoria (Lanham, MD: Rowman and Littlefield, 2000), 155–76Google Scholar. Nickel lays out his four-category scheme of economic liberty on pp. 156–57.
13 Honoré, Anthony, “Ownership,” Oxford Essays in Jurisprudence: A Collaborative Work, Guest, A. G., ed. (London, New York: Oxford University Press, 1961), 107–47Google Scholar.
18 I think of indentured servitude as primarily involving questions of labor, while slavery is more fundamentally an issue of ownership. I am open to alternative ways of categorizing these issues.
20 “Unlike the laws of Production, those of Distribution are partly of human institution: since the manner in which wealth is distributed in any given society, depends on the statutes or usages therein obtaining.” Mill, John Stuart, Principles of Political Economy (Indianapolis: Liberty Fund, 2006), 21Google Scholar.
21 Ibid., 223. For most of his career, Mill advocated that governments leave the economy largely unfettered. However, this was not because he believed citizens had basic rights to economic liberty. Rather, he thought free economic regimes would tend to produce good consequences.
22 Rawls, John, Political Liberalism (New York: Columbia University Press, 1993), 298Google Scholar.
23 For a useful survey of the varieties of libertarian thought, see Matt Zwolinski, “Libertarianism,” The Internet Encyclopedia of Philosophy, http://www.iep.utm.edu/libertar/.
24 Because Nozick altered parts of his view, his critics sometimes claim that he rejected libertarianism altogether. See Nozick, Robert, The Examined Life (New York: Basic Books, 1989), 287Google Scholar. There is textual evidence against this claim. See Nozick, Robert, Invariances (Cambridge, MA: Harvard University Press, 2001), 281–82, passimGoogle Scholar. I thank Jason Brennan for conversations about these passages.
25 Freeman, Samuel, “Illiberal Libertarians: Why Libertarianism Is Not a Liberal View,” Philosophy and Public Affairs 30, no. 2 (Spring, 2001): 105–51CrossRefGoogle Scholar. A more complete map would include “left-libertarianism,” on which see Otsuka, Michael “Self-Ownership and Equality: A Lockean Reconciliation,” Philosophy and Public Affairs 27 (1998): 65–92CrossRefGoogle Scholar; and Vallentyne, Peter and Steiner, Hillel, eds., Left-Libertarianism and its Critics: The Contemporary Debate (New York: Palgrave, 2000)Google Scholar.
26 “Our property is nothing but those goods, whose constant possession is establish'd by the laws of society; that is, by the laws of justice.” Hume, David, A Treatise of Human Nature, Selby-Bigge, L. A., ed. [Oxford, 1960 (1888)], 491Google Scholar. Milton Friedman says: “What constitutes property and what rights the ownership of property confers are complex social creations rather than self-evident-propositions.” Friedman, Milton, Capitalism and Freedom: Fortieth Anniversary Edition (1962; University of Chicago Press, 2002), 26CrossRefGoogle Scholar.
27 Nagel, Thomas and Murphy, Robert, The Myth of Ownership: Taxes and Justice (New York: Oxford University Press, 2002), 8Google Scholar.
29 See Gaus, Gerald's compact critique in “Coercion, Ownership, and the Redistributive State: Justificatory Liberalism's Classical Liberal Tilt,” Social Philosophy and Policy (2010): 233–75, at 259CrossRefGoogle Scholar.
30 Nagel and Murphy, The Myth of Ownership, 16–17.
31 Nagel, Thomas “What Is it Like to Be a Bat?” The Philosophical Review 83 (1974): 435–50CrossRefGoogle Scholar.
32 Rawls, Political Liberalism 338–9.
35 For a definition along these lines, see Rawls, John, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), 114Google Scholar.
36 Market democracy makes room for worker-owned firms, and so for whatever forms of economic freedom might be available therein. Against liberal socialism, however, market democracy insists that citizens cannot be compelled to work in worker-owned firms. Nor can workers be compelled to join unions, though individuals may have the right to do so for purposes of collective bargaining. In all these areas, market democracy insists that we protect the private economic liberties of liberal citizens.
37 Rawls, Justice As Fairness, 41.
38 Adam Smith described people as simultaneously “self-interested” and “other regarding.” Rousseau and Kant offered accounts of the moral powers of citizens. For an illuminating discussion of the idea of moral powers in Rousseau and Kant in relation to that of Rawls, see Spragens, Thomas A. Jr., Getting the Left Right: The Transformation, Decline, and Reformation of American Liberalism (University Press of Kansas, 2009), 68–71Google Scholar.
39 For Rawls's discussion of the moral powers, see e.g., Justice As Fairness, 18.
40 Consider another example: Imagine a society that tailored the right of religious freedom to allow the practice of any religion whatsoever—so long as such practice was conducted only in private homes.
42 See Waldron, Jeremy, “Theoretical Foundations of Liberalism,” The Philosophical Quarterly vol. 37 (1987): esp. 128CrossRefGoogle Scholar.
43 I thank Jason Swadley, Zak Beauchamp, and Jason Brennan for discussion of these ideas.
44 On the distinction between these distributive goals, see Parfit, Derek, “Equality and Priority,” Ratio (New Series) X, no. 3 (1997): 202–21Google Scholar.
45 Rawls, Justice As Fairness, 46.
46 Nickel, 156.
47 For example, I am a shareholder in a cooperatively owned ski area (Mad River Glen, in Fayston, Vermont). As a member of that co-op, I participate in deliberations about how we will manage our collectively owned property (such as our policy, enthusiastically renewed each year, of banning snowboarders).
48 Charles Murray, In Our Hands, 82 (emphasis mine).
49 “The Happiness of the People” 2009 Irving Kristol Lecture, American Enterprise Institute for Public Policy Research, (Washington, DC: The AEI Press, 2009), 7–9Google Scholar.
50 Conversation with Charles Larmore sharpened my understanding of these issues, even though our convictions on these matters diverge.
51 Waldron, , “Socioeconomic Rights and Theories of Justice,” working manuscript November 2010, http://www.law.nyu.edu/ecm_dlv2/groups/public/@nyu_law_website__academics__colloquia__law_economics_and_politics/documents/documents/ecm_pro_066908.pdf, p. 3Google Scholar.) Most democratic theorists argue that private property is publically justifiable so long as welfare rights are also guaranteed (typically by the state). See Brettschneider, CoreyDemocratic Rights: The Substance of Self-Government (Princeton, NJ: Princeton University Press, 2007), especially 114–35Google Scholar.
52 Rawls, Theory of Justice, rev. ed., 155–7; 386–7.
53 I develop this idea in “Can Feminism Be Liberated from Governmentalism?” Toward a Humanist Justice: Essays in Honor of Susan Okin (New York: Oxford University Press, 2009)Google Scholar.
54 Holmgren, Margaret, “Justifying Desert Claims: Desert and Opportunity,” The Journal of Value Inquiry 20 (1986): 265–78CrossRefGoogle Scholar.
55 Rawls, Theory of Justice, rev. ed., 476 (emphasis mine).
56 Hayek, F. A., “The Use of Knowledge in Society, American Economic Review (American Economic Association, 1945)Google Scholar.
57 Friedman, Milton, Capitalism and Freedom (Chicago: The University of Chicago, 1962), 15Google Scholar.
58 Drawing on the work of Henry Shue, Nickel calls arguments for economic liberty of this type “linkage arguments” (in “Economic Liberties,” 157. For historical discussion, see Pipes, Richard, Property and Freedom (New York: Alfred A. Knopf, 1999)Google Scholar.
59 The account of Kant's theory of property given in this paragraph, as well as the contrast between Kant and Locke developed in the next paragraph, is informed by research done for me over the summer of 2010 by Jason Swadley, as well as by a superb unpublished article manuscript by Swadley entitled “Economic Liberty and the High Liberal Tradition” (draft of August 2010). My understanding of Kant's political philosophy also particularly has been improved by Ripstein, Arthur's Force and Freedom: Kant's Legal and Political Philosophy, (Cambridge, MA: Harvard University Press, 2009)CrossRefGoogle Scholar. The applications of these ideas to market democracy are my own.
60 Freeman, “Illiberal Libertarians,” 106. Note that, in a departure from my usual terminological practice, I am here using the term “high liberal” to denote a method of justification, rather than a set of substantive moral commitments. Classified in terms of his substantive moral commitments, Kant is a classical liberal (on which see the following note).
61 “Freedom (independence from being constrained by another's choice), insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every man by virtue of his humanity.” Kant, Immanuel, Practical Philosophy (Cambridge University Press, 1999), 393Google Scholar.
62 Allen Wood writes: “Kant's political philosophy or theory of right, considered by itself, is merely a version of classical liberalism.” Wood continues: “It is based on two familiar liberal tenets: (1) Competition is nature's means for the development of human faculties; and (2) The state's function is to regulate competition by protecting property and coercively enforcing formal principles of right.” (Wood, Allen W., “Kant and the Problem of Human Nature” in Jacobs, Brian, ed., Essays on Kant's Anthropology (Cambridge Books Online, Cambridge University Press, 2009), 22Google Scholar.
63 In the opening lines of Anarchy, State, and Utopia, Nozick states: “Individuals have rights, and there are things that no other person or group may do to them (without violating their rights). So strong and far-reaching are these rights that they raise the question of what, if anything, the state and its officials may do.” p. ix.
64 Kant, Practical Philosophy, 468 (quoted in Swadley, 12).
66 van Parijs, Phillipe, “Difference Principles” in Freeman, Samuel, ed., The Cambridge Companion to Rawls (Cambridge University Press, 2002)Google Scholar.
67 Freeman, Samuel, “Capitalism in the Classical and High Liberal Tradition,” Social Philosophy and Policy 28 (2011)CrossRefGoogle Scholar.
68 John Tomasi, Free Market Fairness, chap. 6 “Two Concepts of Fairness.”
69 Rawls, Justice As Fairness, 135–40.
70 John Tomasi, Free Market Fairness, chap. 7 “Feasibility, Normativity, and Institutional Guarantees” and chap. 8 “Free Market Fairness.”