John Tomasi undertakes in Free Market Fairness to refute the late John Rawls on Rawlsian grounds. The director of the Political Theory Project at Brown University, Tomasi argues that Rawls's principles are better served by market democratic than by social democratic institutions. His noble effort is to show liberals the value of free markets and to teach conservatives not to fear the idea of social justice. It succeeds as far as it goes, and the places it doesn't go are instructive.
Tomasi accepts from Rawls's A Theory of Justice (1971) the "veil of ignorance," the priority of rights, the "difference principle," ideal theory, and even "justice as fairness." Uncomfortable with libertarians' demand for absolute individual rights grounded in self-ownership, and even more with Randian contempt for social justice, Tomasi agrees with Rawls to base rights on first principles acceptable to all members of society, whether fortune has dealt them a good or bad hand. Accordingly, Free Market Fairness grants basic rights and liberties to all, guaranteeing not only formal but effective opportunity. The author concedes with Rawls that social institutions should improve the lot of the least advantaged, which means however the working poor rather than the grievously handicapped. Justice means "fairness" in treating everyone as free, equal moral agents in a society understood as a cooperative venture. Finally, Tomasi acknowledges that outlining a "realistic utopia" for a people who adhere to Rawlsian justice is compatible with recognizing that sociological particularities mean actual implementation of those principles would depart from, and fall short of, the ideal.
He differs from Rawls on two crucial points. First, he insists that the basic rights and liberties guaranteed to all must encompass economic liberties, too. Even Rawls endorses the rights to choose one's profession and own some personal property. Tomasi adds a list including rights to own productive property, to make all sorts of contracts, to accumulate capital and invest it profitably, and to bequeath and inherit. These rights are not absolute for Tomasi any more than rights to religious liberty or free expression are for Rawls. They can be limited since basic freedoms often conflict with one another.
What Rawls accepts and Tomasi rejects, however, is a preferred position for expressive and political liberties over economic ones. For many people character and agency are best exercised in the ordinary activities of making a living, contends Tomasi. The wealth acquired through economic growth is more valuable to their ability to make important choices than the small satisfaction that comes from participatory workplace democracy—especially if all that inclusiveness results in less prosperity. Contrary to the story told by "high liberals" from John Stuart Mill to John Maynard Keynes to Rawls, economic growth and social wealth make people—even and perhaps especially people of limited means—more, not less, appreciative of economic liberties, and insistent on their protection. Tomasi enthusiastically endorses this insight, which he reminds us is widely shared by popular opinion. In the late 19th and early 20th centuries liberalism evolved from laissez-faire toward social democracy on the grounds that concentrations of private wealth had depressed actual opportunity for most people. By the late 20th and early 21st centuries, however, it was clear that liberalism's next advance lay in rejecting the suppression of opportunity by state power, and reviving the prestige of free markets as an element of human well-being, valuable both in itself and for fostering economic growth.
Second, Tomasi recalibrates Rawls's difference principle even as he applies it. The preponderance of modern economic evidence shows that market societies do significantly better than social democracies at raising the life prospects of ordinary workers, in terms both of real income and of actual goods and services delivered. Whatever today's workers may lose in union benefits is made up for by control of their own choices as consumers. Moreover, Tomasi is confident that behind the veil of ignorance, people would choose, so to speak, to be paid in cash, not in promises of bureaucratic protection.
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But what guarantees that markets will succeed in raising the prospects of the poor? What, replies Tomasi, ensures that nanny states will succeed in providing the benefits they promise over the long run without bankrupting their societies and betraying their promises? Ask the Greeks how well they sleep at night.
Having agreed to spar on the level of "ideal theory," Tomasi contends that Rawlsians can't dismiss his socio-economic generalizations any more than he can dismiss theirs. Friedrich Hayek's account of the inevitable failure of centralized planning in the face of the superior local knowledge conveyed by markets supports Tomasi's confidence in spontaneous order. Hayek famously denounced the very idea of social justice, but what he really objected to was the effort by government to coerce distribution, which he thought nonsensical. Government can no more repeal the law of unintended consequences than it can repeal the law of supply and demand.
Tomasi embraces social justice—defined as a better life for the least advantaged—but replaces the coercive means its champions usually favor with reliance on markets. Like Hayek and Adam Smith, and unlike some libertarians, he accepts a role for the state in administering justice, providing defense, building roads, and offering education, but is open to free-market approaches, especially for healthcare and old-age insurance. His simultaneous concern for social justice and market freedom makes sense, he argues, of Hayek's otherwise perplexing statement in a late work that his differences with Rawls were "more verbal than substantive," since they agree "on what is to me the essential point."
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Tomasi is too realistic to expect that his argument will persuade committed Rawlsian liberals. Confident of sustained economic growth, he is willing to let them retire with their pensions intact, so to speak, and to make his case to the young, who he believes are on his side. Should his argument persuade conservatives, old or young? They already agree with him about the value of markets for economic growth and individual freedom. Should they agree as well that the way to vindicate markets and stipulate their limits is to adopt, and then adapt, a Rawlsian framework?
I have my doubts. First, Tomasi's "Kantian constructivism" ignores the serious reflection that contemporary philosophy is paying once again to the knowability of the human good. Hayek and Rawls both accept the fact-value distinction, the claim that empirical facts can be known but normative values are pre-rationally or irrationally given. This is why Rawls calls his theory "deontological." Unable to assume more than a "thin theory" of universal good, it lets each person define what's good for himself. And it's why even the advent of supercomputing and sophisticated market research would not budge a disciple of Hayek from respecting the market knowledge of individuals, since only they can decide how much they value something, which they do in the act of deciding what they are willing to pay for it. Contemporary social science still makes the fact-value distinction its hidden premise, but serious philosophy has drawn that distinction into question. If the human good can be known, even in an outline form that leaves individuals ample room to choose their way of life, then the question of distributive justice has to be revisited in light of what is known about the goods to be distributed. To avoid the whole question is to dwell amidst superficialities—sometimes prudent in politics, always devastating in philosophy.
Perhaps Tomasi would point to his notion of individual self-authorship as the foundation on which he builds his theory. He means it as an improvement on the libertarian concept of self-ownership, providing flexibility and choice in defining justice: authors know they have to accept editorial revision if they want to be published, while ownership is absolute. But this corrective highlights a second problem. Tomasi's self-authorship leaves little or no room for religious believers, for whom the term denies an Author of their being by whose authority they are bound and by whose care they hope to thrive. It's no accident that Tomasi says next to nothing about the social questions that rend society today: if we are all self-authors, isn't public morality as stifling as socialism?
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Although Tomasi brackets the social questions, he gives a silent nod to traditional positions on them: for example, he writes eloquently of the dignity of working to support one's family rather than relying on government transfer payments, and on the value of inheritance as it passes from parent to child. But if family is productive of such goods, can't society promote the family as a good? Indeed, society would seem to have a duty, on Tomasi's terms, to guide the young in forming families and support the middle-aged in maintaining them, lest lives be ruined by radical experimentation. Hayek explains the discovery of social rules retrospectively, but what can be said prospectively against the claim that in modern conditions—in the world of infinite "growth"—the old rules no longer apply?
Finally, Tomasi undercounts the importance of politics. It's not wrong to say the poor want wealth rather than activism, but it is too simple. The poor sometimes vote for those who make them proud instead of promising to line their pockets, and kids from modest backgrounds join the military and fight hard for their country while their peers are making money. Even less does economic determinism explain what is denied to the more virtuous if their talents are limited to moneymaking and never applied to the exercise of political virtue, which often requires economic sacrifices, or at least absorbing "opportunity costs." Partisanship is not justice, but it is an inevitable part of politics in a free society. The bonds of political association are not reducible to market relationships—at least not without the destruction of something valuable and ennobling. Because the bureaucratic state is no substitute for political virtue and political friendship, free-market liberals and conservatives can be, well, political friends in the fight against its domination of society. But such political friendship is not the achievement of a genuine common good—which no philosophic account of justice ought to neglect.