The legal profession's pro bono obsession leads to the question, “who benefits?”
The number of contradictory positions associated with the words “liberal” and “liberalism” have led some to conclude that such expressions are now so unstable in their meaning that they lack sufficient descriptive power of any lasting significance. Of course, the same could be said of terms used to describe most modern political positions, including “conservatism” and “socialism.” Liberalism, however, seems particularly amorphous inasmuch as the phrase is associated with figures as apparently different in their starting points and conclusions such as Friedrich Hayek and John Rawls, but also David Hume and Immanuel Kant.
Or is it? In his new book Free Market Fairness, the political philosopher John Tomasi challenges and seeks to overcome some of the internal divisions among those who ascribe to the liberal nomenclature. Rather than attempting a synthesis of competing schools of liberal thought, Tomasi outlines what he is very careful to specify as a “hybrid” (87) political theory that draws upon classical liberalism and libertarianism on the one hand, and what he calls high or left liberalism on the other. Tomasi does not seek to somehow ground classical liberal institutions on the basis of left liberal moral imperatives, or vice-versa. Instead he argues for what he calls market democracy as a “justificatory hybrid . . . which combines insights from the classical and liberal traditions at the level of moral foundations” (95). Market democracy, as Tomasi describes it, reflects what he describes as his “simultaneous attraction” (xiv) to left-liberal and libertarian ideas. Free Market Fairness, however, also relies upon the insight that classical, libertarian, and left liberals may have more in common than they often realize or are willing to admit. This may explain why much of Tomasi’s book explicates in considerable and revealing detail the present “state-of-play” inside the sandpit of liberal political theory.
On one level market democracy, as Tomasi conceives it, “is a deliberate form of liberalism” (xv) in the sense that liberals claim to be identifying impartial ways of realizing fairness. This is a project that many associate today with Rawls and his legions of followers in the academy. Yet it also manifests itself in Kant and some of Hayek’s later works, most notably, his three-volume Law, Legislation and Liberty. Typically, justice-as-fairness in its various Rawlsian modes has translated into most high/left liberals promoting decidedly social democratic solutions to perceived problems. But Tomasi’s market democracy is also receptive to what he calls the “moral insights of libertarianism” (xv). Here he has in mind the extra-economic importance of private economic liberties. These freedoms, Tomasi argues, are not justified simply because socialism and social democracy have miserable economic track records. Instead he describes these private economic liberties as morally-rooted in reasonable deliberation (xv) about how people can exercise “self-authorship” in ways that are just to other people.
Tomasi is acutely aware that, stated in this way, his conception of market democracy is bound to encounter fierce criticism not just from left liberals concerned about social justice in a Rawlsian sense of an equality of conditions, but also those libertarians inclined to view political issues (and sometimes everything) through the property rights lens. Tomasi also knows that the type of open-ended research program which he advocates would require libertarians and left liberals alike to concede a great deal to each other.
Yet the very point of this book is, Tomasi specifies, “to be disruptive” (xxii) – perhaps because most liberals today seem stuck for the most part in entrenched positions, shouting “property rights/self-ownership!” or “difference principle/social justice!” at each other (not to mention the rest of us) and aren’t engaging in the type of creative thinking needed to take liberal contributions to political theory to their next stage of development. To the extent Free Market Fairness encourages critical self-reflection among liberals, Tomasi will have succeeded in his subversive objective. Is the idea of social justice really the empty miasma that Hayek and most classical liberals and libertarians believe it to be? Should property rights really be overridden as often as Rawlsian liberals are wont to do?
These are just some of the questions carefully dissected by Tomasi as he guides his readers through the maze of modern liberal thought and classifies the similarities and differences between the warring liberal camps in order to establish the building-blocks of market democracy. In terms of convergences, Tomasi identifies self-authorship in the sense of personal agency and a concern for what liberals regard as civil liberties as key common interests of high, classical and libertarian liberals. He also points out that some form of consequentialism seems to undergird most liberal thought. Hayek, Tomasi notes, is a type of consequentialist (149), despite his later criticisms of utilitarian modes of reasoning (which are surely just a variant of consequentialism). But so too, one might add, is Rawls, despite his desire to escape Benthamite-Millian utilitarianism and unease with aspects of consequentialism. After all, Rawls’ Theory of Justice argued that each person must have “an equal right to the most extensive total system of equal basic liberties with a similar system of liberty for all.” This assumes that humans can somehow determine the “extent” of a “total system” of liberties by “weighing” liberties, such as freedom of speech or freedom of association. In short, Rawls’s schema for political order implicitly relies to some degree upon some type of consequentalist measuring (of incommensurable goods, but that’s another discussion).
Having outlined the key arguments associated with classical liberalism (chapter 1) and high liberalism (chapter 2), and identified important distinctions between these groups (and among classical liberals and libertarians), Tomasi makes his case for why a “thick” conception of economic liberties ought to be included “in the basic rights of liberal citizens” (81). His premise is that it is not enough for people to be given material things in order to have self-respect. Economic freedom matters because it allows people to advance by their own efforts in the material realm, and thereby exercise self-authorship and realize a degree of self-respect because of their achievements in this area.
Integrating this concern – variants of which, incidentally, may found in non-liberal moral arguments for markets – with high liberalism’s emphasis upon distributional fairness is crucial for Tomasi’s conception of market democracy. Chapters 4-8 of Free Market Fairness reflects his effort to realize this end, while simultaneously answering likely objections from classical, high, and libertarian liberals, many of whom Tomasi knows will simply “hunker down, go about their business, rather than picking up and moving to the new building area I [Tomasi] have surveyed” (268). Part of the attractiveness, Tomasi hopes, of his new liberal edifice is what he considers to be its consonance with the American experiment. Free market fairness might even be called, he argues, “social justice, American style” (272). Apart from being strong advocates of the practices and institutions of commercial liberty, Tomasi notes that figures such as James Madison (130-132) were also interested in questions of distributional fairness. But, Tomasi adds, some of America’s founders concluded that one of the best defenses of the American system of economic liberty was “it is designed to be especially advantageous to the poor” (132).
In the realm of political economy, market democracy seems to translate into a mildly-regulated free market (with every economic regulation subject to close judicial scrutiny), relatively limited government (though with potential scope for greater intervention when deemed necessary), and a minimal safety-net for the least well-off that necessitates some redistribution (but not in the interests of redistribution for its own sake). If this is accurate, it would likely mean smaller welfare states and freer economies than what presently exist in North America and Europe, but not a return to pre-Progressivist America or nineteenth-century European liberalism. It is hard to imagine hard-line libertarians or convinced left-liberals supporting such a program. Some classical liberals and others working in or sympathetic to the Smithian tradition, however, may well be persuaded as to market democracy’s merits.
Given this book’s aims, those broadly critical of liberalism in its various guises should not expect to have their particular concerns addressed. Phrases such as “self-respect” and “own values” are frequently deployed through Free Market Fairness. Self-authorship within a framework of just institutions (rather than human flourishing more broadly conceived) appears to be market democracy’s primary normative end. This could be read as implying that another commonality among liberals is a certain commitment to some form of philosophical skepticism about ends other than autonomy for its own sake. Hayek himself observed in his Constitution of Liberty that “in some respects the liberal is fundamentally a skeptic.” And skepticism has been subjected to searing critiques that many liberals of all stripes have been reluctant to engage. Free Market Fairness doesn’t respond to these critiques. But such critics are not Tomasi’s intended audience.
Free Market Fairness is not a book for the lazy or faint-hearted. Tomasi painstakingly takes his readers through the different versions of liberalism (and the numerous variants within the variants), partly, it seems, because he wants to avoid caricaturing classical, high, and libertarian liberal positions. Yet Tomasi manages to undertake this difficult task and articulate his own theory without subjecting his readers to the notoriously reader-unfriendly style of works such as A Theory of Justice. Liberals of all descriptions (not to mention non-liberals) will find many things with which they will quarrel in Free Market Fairness. But in writing this book, John Tomasi has put together one of the best contemporary attempts to critically analyze contemporary liberalism from “within,” while simultaneously seeking to rearrange its fundamental settings. For this, advocates and critics of liberalism alike should be grateful.