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Published online by Cambridge University Press:  14 December 2011

John Tomasi
Philosophy and Political Science, Brown University


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
Copyright © Social Philosophy and Policy Foundation 2012

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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.

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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.

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14 Ibid., 113–24.

15 Ibid., 109.

16 Ibid., 110.

17 Ibid., 108.

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.

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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.

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34 Ibid., 298.

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), 6871Google 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.

41 Ibid., 46.

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43 I thank Jason Swadley, Zak Beauchamp, and Jason Brennan for discussion of these ideas.

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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).

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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,, 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.

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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.

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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).

61Freedom (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.

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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).

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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.”