Considering two Roman legal maxims may help us navigate the crisis which has resulted from the coronavirus pandemic.
John Tomasi’s Free Market Fairness has the intellectual ambition of formulating a synthesis – at least a tentative synthesis — of key elements of libertarian or classical liberal thought on the one hand and social democrat thought on the other hand. From the former Tomasi purports to take robust economic rights that have a strong claim on being recognized within any acceptable social-political order and an appreciation of the beneficial outcomes of spontaneous orders; and from the latter, he takes a strong commitment to “social justice” that is understood in difference principle fashion as a commitment to making the worst off members of society as well off as possible.
It is important to keep before us how demanding the renowned difference principle is. That principle requires that the institutions that affect the distribution of income in society be so structured that the income that accrues to the least well-off “representative man” be as high as possible. The social minimum must be maximized. Between any two possible distributions of income in a society, justice demands the distribution with the higher pay-off for the worst off no matter how much less income other representative men have under that distribution (as long as those others don’t become the new worst off). If we keep in mind how demanding the difference principle really is, we will keep in mind how unlikely it is that the spontaneous processes of a private property free market economy will satisfy this demand and, therefore, how unlikely it is that Tomasi will achieve the synthesis which is his intellectual ambition.
Free Market Fairness also has the political ambition of getting standard social democratic friends of social justice to be more open to recognizing the moral significance of economic liberties and the usefulness of “spontaneous” market processes. Indeed, I think that this political ambition is more important for Tomasi than the intellectual ambition. And this may explain the lack of arguments that I complain about in what follows. Nevertheless, I think this complaint is warranted because the political goal depends upon the intellectual goal. For the political goal depends upon actually presenting arguments for the proposition that respect for economic liberty is required by justice and for the proposition that a justice-based endorsement of economic liberties can be combined with a justice-based endorsement of the difference principle within a coherent system.
Tomasi casts free market fairness within the standard Rawlsian architectonic. In keeping with that, the form in which he hopes social democrats will recognize the moral significance of economic liberties is the inclusion of such liberties alongside other fundamental liberties within an overall Liberty principle. And that expanded Liberty principle will (in Rawlsian fashion) have priority over any principle concerning the distribution of opportunity or of income. The form in which Tomasi hopes social democrats will recognize the usefulness of spontaneous market processes is a willingness to rely, at least to some considerable degree, on such market processes for the satisfaction of the difference principle, i.e., for the economically worst off being made as economically well off as possible.
If the operation of the private property free market order were always to do better for the worst off than any regime that would involve governmental coercive measures to satisfy the difference principle, no coercive governmental action against people’s economic liberties would ever be called for by social justice. And no question would arise about choices between economic liberty and maximally benefiting the worst off. But Tomasi correctly sees that some degree (perhaps a considerable degree) of state interference with economic liberties may well be thought to be necessary to secure satisfaction of difference principle social justice.
Yet, how can these incursions against economic liberties be permissible if those liberties are ensconced within a first principle of Liberty that has priority over the other principles (including the difference principle) that inhabit Tomasi’s overall conception of justice? Are the state coercive measures that would be needed within the Free Market Fairness regime to satisfy the difference principle ruled out by the Liberty principle having lexical priority over the other principles of justice? If Tomasi follows Rawls, he would have to endorse this lexical priority and say that in these circumstances it would be unjust to do what was necessary to achieve social justice. But Tomasi cannot say that; for his aim is to induce academic “high liberals” to have some regard for economic liberty and he realizes (or assumes) that the price he has to pay for that (and which he is quite willing to pay) is an unbudgeable commitment to the idea that the pay-out to the least well-off economic group must be maximized.
So, for Tomasi, if there is a conflict between economic liberty and maximizing pay-out for the worst off, the economic liberties have to give way. After all, he says, one would not want to say that any rights are absolute. (We are treated to the trite remark about not being allowed to shout “Fire” in a crowded theory. This might help explain why I can’t use my match to set fire to your theater. But it hardly illuminates why you can take my matches to help illuminate your theater.) So, at most, economic liberties can have only some sort of weaker priority. What is that priority? What reasons do we have to endorse that weaker priority? Tomasi simply does not address these sorts of questions. And it seems that he cannot address these issues in light of his political ambition because any identified trade-off rate between economic liberties and the satisfaction of the difference principle would imply that sometimes it is right (for the sake of economic liberty) to forego satisfaction of the difference principle. Indeed, the implicit but pervasive tone of Tomasi’s presentation is that when there is a clash between respect for economic liberties and satisfaction of the difference principle, economic liberties have to give way. Despite its lower position within the Rawlsian-Tomasian architectonic, the difference principle turns out to be absolute or at least more absolute than economic liberties. 
Putting aside the priority question, what arguments does Tomasi offer on behalf of economic liberties and on behalf of the difference principle? On behalf of economic liberites Tomasi offers essentially perfectionist arguments without recognizing that they are perfectionist and, hence, without recognizing the likelihood that they will be ill-received by the “high liberals” he hopes to placate. The basic argument he offers is that, for some people, activities that require extensive economic liberties – liberty to acquire and control property, liberty of contract, liberty to shop – are essential to their development as responsible self-authors. I think this claim is correct. But what follows from it? Does it follow that, for each individual whose self-authorship would develop through the exercise of these liberties, it’s a good thing to have those liberties? Can one get from that to the much stronger claim that, for each person, it’s a good thing for everyone to have these liberties? Can one get from this claim to the yet stronger claim that justice requires that everyone have these liberties?
In addition, the essentially Rawlsian framework of the whole book (and of the ordering of the various principles of justice) lead one to expect some sort of Original Position argument on behalf of the inclusion of robust economic liberties within a general and first Liberty principle. But there is no hint of any such argument in Free Market Fairness. Nor is it easy to envision occupants of an Original Position who are also, on Tomasi’s picture, lining up to adopt a stringent difference principle, being willing to commit to robust economic liberties. One should recall here Rawls’ conviction that one will not have to worry about clashes between the first principle of justice (having to do with liberty) and the second principle of justice (having to do with opportunity and income) precisely because each principle applies to a discrete domain of social life. That strategy of rendering the two principles compatible by supplying each with its own rightful domain disintegrates with the insertion of robust economc liberties into the first principle.
What about arguments on behalf of the difference principle? Again, the general Rawlsian framework of Tomasi’s book would lead one to expect some sort of Original Position argument for the difference principle. (Presumably, some such argument is needed to bring low liberals on board.) But, no such argument is to be found. Instead, Tomasi’s strategy is to wave around a few slogans that almost anybody would be happy to affirm and then declare that to subscribe to these slogans is to subscribe to the difference principle. We should perceive one another “as valued members of a cooperative whole.” (89) We should have a social-economic order in which “Even the least fortunate know they are better off… because of the productive activities of the most talented and fortunate ones.” (89) We should have a society in which “citizens can look one another in the eye as moral equals…” (89) We should have a society in which all “respect one another as moral beings with the capacity to assess their life prospects and set their lives on courses chosen by each.” (89) If these sorts of claims resonate with you, you are actually an adherent of social justice and, thus, an adherent of the difference principle.
This same inattention to inconvenient distinctions is on display in Tomasi’s rhetorical use of “libertarian” and “classical liberal” thinkers whose one virtue was that they (somehow) were right about the importance of economic liberties. According to Tomasi, the libertarian position is “Self-Ownership, Self-Ownership, and more Self-Ownership.” The Classical Liberal Position is “Aggregate Happiness, Aggregate Happiness, and more Aggregate Happiness.” However, quite frequently such libertarian or classical liberal dolts wander off their own arid reservations and, in contradiction to their own principles, say something about other people mattering in some respects. For example, frequently a libertarian or classical liberal will endorse a Lockean proviso or will say that people in dire circumstances cannot be obligated just to sit down and die, or that for a variety of reasons life will go better for everyone if those in great need are protected by a safety net, or that a desirable social-economic order is one in which everyone gains (or at least can expect to gain).
Tomasi never distinguishes among these claims and never inquires how they might arise from and have a basis in the real theories of various libertarians and classical liberals. Instead, Tomasi’s analysis is that all such people are unknowing friends of social justice. (More strictly speaking, all such people unknowingly endorse “the distributional adequacy condition;” but it turns out that the only candidate for this condition is the difference principle) In fact, these bewildered thinkers will become knowing friends of social justice when they are cured of their disease, “social justicitis.”
One could go on almost endlessly to display the incredible number of misreadings that Tomasi engages in to represent various political theorists as unknowing adherents of the difference principle. (Tomasi seems particularly pleased with his reading of Mandeville as an advocate of the difference principle.) And one could point almost endlessly to arguments that Tomasi would need to make in support of his view and yet does not even begin to make. I think that the best interpretation for all of this is that the political ambition of Free Market Fairness, which centers on the need to win the respect of the high liberal establishment, overwhelms the intellectual ambition of developing a coherent hybrid of classical liberal and high liberal theory.
 John Tomasi, Free Market Fairness (Princeton: Princeton University Press, 2012).
 Michael Huemer has suggested to me that clashes between economic liberties and the fulfillment of the difference principle are less of a problem for Tomasi than I assert because, in effect, Tomasi has a thinner conception of economic liberties than I have been assuming him to have. Huemer suggest that Tomasi is only concerned about detailed coercive interventions in economic decision-making such as price controls or state-imposed barriers to entry into various trades. Maybe so. But this makes Tomasi’s synthesis much more receptive to big government than most readers will presume it is supposed to be.
 Tomasi, 140.
 This is not the only place in which Tomasi employs the not entirely attractive device of describing some intellectual opponent as diseased.
 Tomasi 129. See Bernard Mandeville, The Fable of the Bees vol. I, ed. F.B. Kaye (Indianapolis, Liberty Classics, 1988), 37. Tomasi disregards the common late 17th century comparison of the laborer in commercial society with the king in hunter-gatherer society despite the cues provided by Mandeville’s editor.
Additional resources at Law and Liberty:
- Samuel Gregg reviews Free Market Fairness: “John Tomasi Rearranges the Deck Chairs on the Good Ship Liberalism“