CONSTITUTIONAL CAPITALISM:
Economic Freedom, Social Justice and the Myth of Modern Liberalism
John Tomasi
Working draft: please do not quote.
Chapter 4: The Condition of Material Adequacy
Classical liberals should accept social justice as concept. But what
particular conception of social justice should classical liberals
affirm? In this chapter, I gather materials to answer this question.
With varying degrees of self-consciousness, most every major
thinker in the classical liberal tradition affirms some version of
what I call the condition of material adequacy. According to this
condition, a liberals can advocate the classical liberal institutions
of limited government and wide economic liberty only if, in light
of a broad-gauged evaluation of the historical and economic
realities of the society in question, they believe those institutions
are likely to generate an adequate material and social outcome for
all citizens.
Towards what state of affairs must the provision of the material
goods be adequate if, according to classical liberals, the condition
1
of material adequacy is to be satisfied? There are probably as
many ways to answer that question as there are classical liberals. I
shall suggest, though, that one way is morally most attractive when
we consider that question at the level of regime-advocacy that I
call political theory. It is this: classical liberal institutions can be
advocated only if those institutions are deemed likely to generate
social conditions within which citizens might develop the powers
they have as free and equal citizens. That is, classical liberal
institutions should be advocated only if they are deemed likely to
help secure a thickly substantive conception of liberal social
justice. 1
Of course, showing that classical liberals care about the material
well-being of citizens is different from showing that classical
liberals are committed to social justice. After all, classical liberals
can have some concern about material well-being without agreeing
with modern liberals about what the precise shape of those desired
outcomes should be. Further, even if classical liberals did share
with modern liberals a common understanding of what material
outcomes were desired, this would not mean that classical liberals
have the same reasons as modern liberals for caring about those
outcomes.
2
These are important points and we will need to address them anon.
For now, though, I emphasize that my purposes in chapter are not
primarily historical or exegetical. By describing the expressions of
concern in the classical liberal tradition about the material wellbeing of citizens, I am not attempting to show that classical liberal
thinkers ever actually did or do now, secretly, affirm social justice.
[I am not seeking with this book to do for classical liberalism what
Dan Brown sought to do for/to Catholicism with The DaVinci
Code.] Many of the historical figures I discuss were writing before
social or distributive justice, at least in its modern sense, had been
developed as a concept. Further, as we saw in the previous chapter,
recent classical liberals who are aware of social justice strongly
reject that ideal.
So, as I have said, I am here merely assembling some raw
materials. In the next chapter, I shall then use those materials to
develop a particular conception of social justice that I say classical
liberals should affirm.
1. Material Egalitarians Here…
Modern liberals affirm a substantive conception of equality.2 A
concern for substantive equality is not only a standard feature of
3
modern “democratic” liberalism. More, modern liberals claim that
a concern for substantive equality is the defining feature of their
view, the feature that distinguishes the modern, social democratic
tradition from that of liberalism in its classical, capitalistic form.3
However, within the texts of thinkers in the classical liberal
tradition, we consistently find expressions of concern about
patterns of material outcomes. Sometimes classical liberals express
their concern for citizen’s material holdings in relational terms, as
when they say members of a society based on the liberal principles
they recommend will have greater material wealth than will
members of non-liberal societies. Other times, they express their
concern for citizen’s level of material holdings in absolute terms,
as when they claim that their preferred system of governance will
result in citizens having sufficient material holdings to make their
liberties valuable at all. Still other times, they express their concern
for material well-being in relative terms, as when they say that the
outcome of the instantiation of the political principles they
recommend will be some desirable boundary of inequality in the
holdings of the least and the most well off members of society.
Thinkers in the classical liberal tradition often do not make clear
what role they see these expressions of concern about material
4
well-being playing. Sometimes we find expressions of concern
about material well-being peeking out of the interstices of the
theories of writers in this tradition. In this mode, these expressions
of concern are presented in an off-hand, by-the-way manner. If
these hoped-for positive material outcomes are mentioned, they
seem to play the role of buttresses to the main arguments being laid
out in support of classical liberal institutions. Other times, we find
classical liberals invoking these considerations about citizen’s
material holdings in ways that are straightforwardly justificatory.
That is, they rely on the claims they make about the material
consequences of their preferred institutional regime as a way to
justify that sort of regime itself. Despite these variations, though,
thinkers in the classical liberal tradition show a consistent and
manifest concern for the material well being of all citizens. This is
true of recent defenders of classical liberalism. It is true of some of
liberalism’s earliest defenders too.
For John Locke, famously, the great end of government was the
securing of people’s right to property. Locke also believed that
inequalities in material holdings could be justified by the different
degrees of industry of self-owning persons. But from the earliest
stages of his argument, Locke demonstrates his commitment to the
principle that material inequalities should not be unbounded.
5
Before the state, the prohibition on spoilage and the requirement of
labor, provided caps on the degrees of material inequality that are
morally permissible in Locke’s theory. These are natural, godgiven constraints that could have been abscent: if God had created
fruit so that it never spoiled, for example, the spoilage condition
would not limit inequalities. But Locke’s discussion does more
than merely present the inequality-limiting spoilage condition as a
fact. He describes the effect of the operation of the spoilage
condition as in an approving way, as though it seemed obvious to
him that patterns of unequal material holdings, however they were
arrived at, stood in need of some additional form of justification.
After the formation of the state, Locke’s interest in patterns of
holdings, and not just procedures, becomes even more apparent.
Locke says that the state’s protection of property rights encourages
the productive possibilities of human creativity, since “labor puts
the difference of value of on everything.”4 Locke says that an
effect of the operation of his property-protecting political scheme
is that, because of it, even the poorest will do well. Thus, “a day
labourer in England,” Locke tells us, “feeds, lodges and is clad”
better than a king in a America—that is, a (naturally bountiful)
place where this system is not fully in place (II, s.41).
6
But this is proto-Rawls. The “day labourer” in 17 Century England
was indeed “the representative member of the least well-off class.”
Locke is taking care to point out that even the least well off will
fare better in this system than in other systems. The system of
formal equality, with primacy given to the protection of individual
rights to property, is the rational outcome of reasoning under
maximin. After all, what if the class of day labourers were not
made better off under Locke’s preferred scheme? What if they
grew steadily and precipitously worse off? Would Locke just say
too bad—natural rights are natural rights and issues of material
equality are mere sidebar niceties? In a world where the facts on
the ground were such that that growing inequality (rather than
growing wealth) was the likely outcome of the state protection of
property rights, would Locke expect his argument about the
importance of property rights to convince anybody? I don’t think
so.
Locke’s sense of the importance of a positive material outcome for
all citizens explains his need to carve out moral permissions in the
cases where the expectation of well being is not realized. Thus,
Locke writes, “common Charity teaches, that those should be most
taken care of by the Law, who are least capable of taking care for
7
themselves.”5 Locke returns to this theme in an often quoted line
from the First Treatise: “As Justice gives every Man a Title to the
Product of his honest industry and the Fair acquisitions of his
Ancestors…, so Charity gives every Man a Title to so much out of
another’s Plenty, as will keep him from Extream want, were he has
no means to subsist otherwise” (I, s.42).6
These concerns are all expressed in the natural law terms in which
Locke seems to be recognizing something like an adequacy
condition on the form of liberalism he advocates. This condition
limns the commitment to social justice that we would later see in
modern liberals. How much material inequality is too much,
according to this adequacy condition? Locke’s early formulation
leaves this ambiguous (though in this he is not so different even
from many modern liberals). The crucial bit is that Locke, like our
contemporary democratic liberals, affirms that when it comes to
material inequality in the setting of a free society, there is indeed
such as thing as too much. That dimension of too-muchness can
only be captured in substantive rather than formal terms.
Locke is not unique among the early liberals in his concern about
the material effects of his preferred political program on the poor.
Bernard Mandeville is infamous for his disquieting suggestion that
8
even the most vicious forms of vice and greed could result in
positive cooperative outcomes, if only those vices would be
properly channeled. In his early satirical poem, “The Grumbling
Hive” (1705)—which would later provide the core for The Fable
of the Bees---Mandeville suggested that private vices could lead to
pubic benefits, at least when vice is by justice “lopt and bound.”7
Yet Mandeville took pains to point out that the commercial system
he favored not only worked to the material benefit of the least
fortunate. More, that system provided greater benefits to the least
fortunate than any other possible system. After describing how
greed and competitiveness, when shaped and channeled by
appropriately crafted institutions, produced riches in a society,
Mandeville wrote: “THUS Vice nurs’d Ingenuity,/Which join’d
with Time and Industry,/Had carry’d Life’s Conveniencies,/It’s
real Pleasures, Comforts, Ease,/To such a Height, the very
Poor/Liv’d better than the Rich before,/And nothing could be
added more.”8
These are claims of political advocacy, based on predictive
empirical assertions, made at the argumentative level of what I call
political theory. But we find similar claims being made again and
again within the classical liberal tradition.
9
Adam Smith, famously, advocated the capitalistic “system of
natural liberty” because Smith predicted that, within the
incentives-structure of the classical liberal political order, certain
forms of self-interested behavior of individuals could make that
nation wealthy: markets provide allocative efficiency. 9 But Smith
repeatedly emphasizes that his system generates of wealth in a way
that potentially benefits all citizens---including the least well off
workers. Indeed, Smith was so concerned to demonstrate the
positive material affects of commercial society on the poor that
contemporary critics such as Robert Malthus criticized him for not
differentiating between the wealth of nations and “the happiness
and comfort of the lower orders of society.”10
Smith’s key reason for objecting to the system of mercantalism and
for favoring the open market system of “natural liberty” was that
the former exploited the poor and fixed people in their classes
while the latter system benefited the least well off and allowed for
more social mobility. Under mercantalism, wealthy individuals and
groups were able to craft highly specific rules and regulations --such as the Statute of Apprentices, which limited the ability of
workers to choose when and were to work, or the Settlement Act,
which limited the mobility of poor people----which enabled the
wealthy to maintain or even extend their relative affluence. As
10
Smith put it, “It is the industry which is carried on for the benefit
of the rich and the powerful, that is principally encouraged by our
mercantile system. That which is carried on for the benefit of the
poor and indigent, is too often, either neglected, or oppressed.”11
[In some places, it is possible to read Smith as expressing a
concern for the material well-being of the poor out of simple
prudential grounds. After all, as Smith notes, “Servants, labourers
and workman of different kinds, make up the greater part of every
great political society” and thus it makes sense to give special
consideration to their condition with evaluating a society as a
whole (quoted in by Rassmussen, who cites WN I.viii.36, 96). But
Smith makes clear that his devotes so much attention to the
question of how the system of natural liberty will affect people’s
material holdings for moral reasons. Society is a cooperative
venture. The wealth enjoyed by any is in part made possible by the
actions of all the others. This gives every citizen a moral claim to
consideration when questions of material distributions arise. As
Smith puts it: “It is but equity, besides, that those who feed,
cloath and lodge the whole body of the people, should have such
share of the produce of their own labor as to be themselves
tolerably well fed, cloathed and lodged.”12
11
[Smith is a material egalitarian and his defense of the system of
natural liberty rests heavily on his claims about the material
benefits to all members of society that will be the likely
consequence of the adoption of that system. As Dennis Rasmussen
puts it: “The ‘wealth of nations’ that Smith refers to in the title of
his most famous work, then, refer’s not to a nations GDP or any
such aggregate sum, but rather to the prospects of every individual
in the society, including (and especially) the poor” (quoted from
email 1 march 07: get now-published citations to The Problems
and Promise of Commercial Society).13 Expressing these material
egalitarian concerns, Smith writes, “That state is properly opulent
in which opulence is easily come at, or in which a little labour,
properly and judiciously employed, is capable of procuring any
man a great abundance of all the necessaries and conveniences of
life….National opulence is the opulence of the whole people.”14]
[[build in: from Sam Fleischacker: Fleischacker notes Smith’s
Roussean worries about effects of capitalism on workers, then
writes: “Smith goes on to say, as did Hume, that the apparently
unfair division of goods he describes still leaves poor workers
better off than the richest people in more egalitarian societies. It is
at this point that we get Locke’s Amerindian king, who is
materially worse off than the poorest day laborer in England. Smith
12
thus gives us essentially the same justification for inequalities that
John Rawls was to propose two centuries later: they are
acceptable if and only if the worst-off people under a system of
inequality are better off than they would be under an egalitarian
distribution of goods.” A Short History of Distributive Justice, 389, emphases mine.]]
We see a similar concern about patterns of material outcomes in
the work of James Madison. American’s on the political left
typically see a concern for material egalitarianism as a recent
development in American history. On this view, founders such as
Madison had a quaint but simple faith in property rights as
bulwarks against tyranny. The naïve and unscientific application of
the Lockean ideas of the founders, however, rendered America an
increasingly class-riven and undemocratic society---a error of
navigation that was at last identified by Progressive thinkers and
then acted upon by FDR’s New Dealers and later progressives
(now with a small P). But Madison’s views were more Lockean,
and thus more materially egalitarian, than this story suggests.
Madison, far from being praised for his concern for the material
well being of all, is often criticized for his acquiescence to a
particularly rigid and fixed form material inegalitarianism. In some
13
places, for example, Madison apparently accepts the idea that there
will always be two great classes in America, one wealthy and one
poor.15 Madison’s acquiescence to inegalitarianism is often said to
be revealed most clearly in his account of how liberal property
rights can be reinforcing of democracy. By accepting secure,
government-enforcement of property rights, Madison argued, the
poor can reassure the wealthy that the core of their wealth will not
be confiscated through majoritarian measures. The wealthy, with
their elite status thus secured, will be more likely to participate in
popular government of the sort demanded by the less well off—
rather than using their economic power to subvert democratic selfgovernment. And with members of the wealthy class participating
in democratic processes, the poor in turn have reason to participate
as well—rather than breaking off into open class warfare. Secure
rights to property are thus justified in terms of their tendency to
support democratic self-governance, an argument run against a
background acceptance of a society divided in to classes.
How strange, therefore, to find Madison defending the original
U.S. Constitution on material egalitarian terms. Madison thought
the Constitution, with its system of dual and divided sovereigny
and wide economic liberties protected by the state constitutions,
would make possible a strongly commercial society. Commercial
14
society, unlike a mercantalist one, would encourage a great
dispersion of property ownership across the entire population. So
Madison defended strong rights to private productive property not
only because of the ameliorative effects of rights with respect to
class-based threats to democratic processes. Just as important,
Madison defended property rights in terms of the direct material
benefits of such rights to all members of society, rich and poor
alike. As Stephen Holmes says, on Madison’s view, property rights
“are productive not merely protective; they contribute to overall
prosperity, enhancing the well-being of the poorest members of the
community; with economic growth, the proportion of property
owners in the population will increase.”16
Of course, these are empirical claims about the effects of property
rights in a commercially based society in a particular set of
historical, sociological and technological conditions. Those claims
can turn out to be true or turn out to be false. But its crucial to
notice that Madison makes these claims and relies upon them when
securing the normative base of his argument.17
Madison’s argument about the productive, material egalitarian
effects of property rights is no mere aside or throw-away. Taken by
itself, the strategic, class-based argument for property rights that
15
Madison gives on the basis of the tendency of such rights to bring
opposed class interests in democratic equipoise would make little
sense. Democracy assumes equal moral standing of participants.
The great language of the founding documents all advert to that
deep ideal. It is no accident that Madison combines the productive
with the protective justifications for property rights the way he
does—rather than simply setting forth the protective, classbalancing considerations. Madison sees himself as working out the
political and institutional implications of the grand phrases of
equality that framed the Declaration and the Constitution. For
Madison, it was obvious that a concern for political equality within
the classical liberal tradition required a concern for the material
condition of all members of society, rich and poor alike.18
If classical liberal luminaries such as Locke, Smith, and Madison
accept the material adequacy condition, why do classical liberals
get such a bad rap with respect to their concerns for the material
well-being of all citizens? It is probably Herbert Spencer’s fault. In
Social Statics, Spencer spoke with contempt of louts who hang
about tavern doors, who fight with and seek to cheat one another,
refuse to take work of any kind, instead stealing the wages of their
own wives for drink.
16
Regarding such people, Spencer asks: “Is it natural that happiness
should be the lot of such? Or is it natural that they should bring
unhappiness on themselves and those connected with them? Is it
not manifest that there must exist in our midst an immense amount
of misery which is a normal result of misconduct, and ought not be
dissociated from it?” 19
It is true that Spencer thought that in every type of society there
would be dishonest, violent people who refused to work or care
even for themselves. When dealing with such people, Spencer
thought there could be no social remedy but prison, or slow
dissolute death. But in this point Spencer’s position is much like
that of mainstream modern liberals---even if Spencer’s language is
more colorful. Rawls, for example, accepts that even a “wellordered” liberal democratic society will include people who he
calls “politically unreasonable.” Among the politically
unreasonable, presumably, will be people who we might call
“economically unreasonable.” Such people make economic
demands on their fellow citizens the force of which they would
refuse to recognize if made by their fellow citizens against them.
Thus modern liberals typically deny that surfers (or other less
romantic, chronically nonproductive people---say, adult, full-time
surfers of the world-wide web) have a right to be clothed, housed,
17
provided bandwidth and fed. Such people, like Spencer’s tavern
lout, effectively deny the equality of their fellow citizens. Instead,
they seek to use the state to harness the talents and efforts of their
fellow citizens for their own ends, while refusing to allow their
own talents to be made use of in any socially meaningful way. In
effect, the full time web-surfers treat their fellow citizens the way
Spencer’s lout treats his wife. In Rawls-speak, they reject the
principle of reciprocity. Modern liberals, correctly, treat such
people much the same way that classical liberals do.20
Like Locke, Spencer also thought that even among the vaster ranks
of normal industrious people, there would be degrees of industry
and talent and that material inequality would be a natural result.
Intriguingly, though, Spencer does not justify the classical liberal
society in terms of benefits to the supposedly deserving wealthy.
Instead, Spencer advocates liberal institutions in terms of the
material benefits that he predicts that system will provide to all the
members of the society---at least all those who were nonviolent
and willing to work.
In a fascinating exchange with the socialist H.M. Hyndman,
Spencer says his theory is justified because of its benefits to the
poorest workers—agreeing with the moral aims of the socialists
18
while dissenting only regarding the means. Regarding Hyndman,
Spencer wrote: “Many things he reprobates I reprobate just as
much; but I dissent from his remedy.”21 Spencer stood against calls
to nationalize the English economy, just as he stood against
“Progressive liberal” attempts to regulate private labor agreements.
But even Herbert Spencer accepts some version the condition of
material adequacy.22 [[strengthen this: in “The Coming Slavery”,
Spencer explicitly says that his main objection to socialism is
founded on his concern for the workers, not the owners.]]
[ [[build in from from Gaus “Why All Welfare States…Are
Unreasonable” 1-2: Gaus writes: “J.R. McCullough, one of the
great nineteenth century laaissez-faire political economists, was
adamant that ‘freedom is not, as some appear to think, the end of
government: the advancement of public prosperity and happiness is
its end.’ [citing Principles of Political Economy, 5th ed.
(Edinburgh: Charles Black, 1864) PP.187-88.]..the optimal
welfare-maximizing economic policy?: that the welfarist ideal
would best be advanced by provision of a legal and institutional
framework---most important, laws of property, contract, and the
criminal code---that allows individuals to pursue their own
interests in the market and, by doing so, promote public welfare. In
general, what might be called the “classical liberal welfare state”
19
claims to advance welfare by providing the framework for
individuals to seek wealth for themselves, while welfarist such as
Goodin instniat that the market order is seriously flawed as a
mechanism for advancing human welfare and that in addition that
the government has the competency to do better providing the
good of welfare….” [jt: note these are political theory level
arguments; note also that Gaus himself is critical of this welfarist
tradition].
The list goes on. During the progressive era, Ludwig von Mises
complained that advocates of the New Liberalism “arrogate to
themselves the exclusive right to call their own program the
program of welfare.” Mises calls this “a cheap logical trick.” Just
because classical liberals do not rely upon direct, state-based
programs and agencies to secure the material well-being of
citizens, this does not mean that classical liberals are any less
concerned for the poor. 23
Mises can be read as advocating classical liberal institutions on the
simple consequentialist ground that such institutions maximize
overall productivity. Consequentialism is only problematically
related to liberalism, not least because consequentialism has
difficulty guaranteeing that rights will be treated as inalienable.
20
But Mises’ actual argument is more subtle. In defending his
preferred regime of wide economic liberty and strictly limited
governmental power, Mises writes: “Any increase in total capital
raises the income of capitalists and landowners absolutely and that
of workers both absolutely and relatively…The interests of
entrepreneurs can never diverge from those of the consumers.”24
Notice: Mises does not say “Classical liberal institutions generate
the greatest aggregate wealth and so, even though they predictably
deposit 20% of the population in a position of hereditary class
inferiority, this of OK.” Instead, Mises think capitalist institutions
are justified, at least in part, because he believes the likely outcome
of human activity under those institutions will be materially
beneficial for all citizens. Inequalities are justified, Mises seems to
be saying, because they work to the benefit of the least well of
members of society. Of course, this is an empirical claim. It might
be turn out to be true. It might turn out to be false. But to
understand the nature of the moral case Mises makes for the
regime of wide economic liberty, it is vital to consider the fact that
Mises makes that claim. Von Mises too accepts some version of
the condition of material adequacy.25 In this, von Mises is much
like Spencer, Smith, Mandeville and Locke…and Rawls, Dewey,
Green and Mill too.26
21
What about Friedrich Hayek?27 Hayek too is committed to the
substantive equality of citizens. Hayek argues that, in a free
society, state-enforced rules should generally take the form of
prohibitions rather than of specific positive commands. Unlike
commands to perform specific actions, negative rules define a
domain within which individuals are free to act as they think best.
In a society structured this way, individuals are enabled to make
the best use of their local knowledge—that is, the detailed
knowledge each possesses about the particular circumstances of
her or his immediate surroundings. A society that harnesses this
local knowledge will be more productive than any society that
adopts a system where the economy is centrally directed.
The justification of such policies, however, is not efficiency for the
sake of efficiency. Hayek defends what he calls the Great Society
on the basis of his concern for the equal freedom of all citizens. In
particular, Hayek seems concerned that all citizens possess the
material bases that make freedoms valuable. Thus, Hayek says of
the market-based conception of liberalism he prefers that “its
justification consists in its increasing the chances of all.”28 The
“chances of all” Hayek is referring to are the chance for every
citizens to for possess the material goods necessary to make their
22
politically protected freedoms valuable. Thus for Hayek, the deep
justification of the institutions of constitutional liberalism is their
ability “to enhance the probability that the means needed for the
purposes pursued by the different individuals would be
available.”29 Like the democratic liberals Freeman describes,
Hayek defends the version of liberalism he prefers because he
thinks this system best assures that everyone’s liberties and
opportunities will be of significant value.
Notice again that Hayek’s advocacy of market-based institutions
relies an empirical claim: the claim that, as a matter of fact, those
institutions will in fact have the effect of most greatly improving
the chances of all to have the material means needed to pursue
their purposes. Why does Hayek bother to make that empirical
assertion? He makes it because he senses that any satisfactory
justification for a proposed set of institutional arrangements will be
inadequate unless that justification includes a plausible predictive
claim that those arrangements will secure for all citizens the
material means needed to make their liberties valuable.30
Thus, in instances where Hayek fears that market mechanisms may
NOT reliably act to satisfy his preferred material egalitarian
standard, Hayek advocates governmental “correctives” to the
23
spontaneous order. 31 For example, Hayek thinks a liberal
government should provide a uniform minimum income to all
citizens who cannot attain this income through their own efforts:
“There is no reason why in a free society government should not
assure to all protection against severe deprivation in the form of an
assured minimum income, or a floor below which no one need
descend.”32
Similarly, Hayek recognizes that the self-respect of citizens often
depends upon their having opportunities to develop their talents
that they think are at least roughly like those available to their
fellow citizens. “Perhaps the acutest sense of grievance about
injustice inflicted on one, not by particular persons but by the
‘system,’ is that about being deprived of opportunities for
developing one’s abilities which others enjoy.”33 Hayek therefore
advocates public support of schooling: “There is much to be said in
favor of the government providing on an equal basis the means for
the schooling of minors who are not yet fully responsible
citizens….”34
Hayek sees the family as an essential mechanism for the
transmission of cultural values. Those values make possible the
development of one’s abilities and talents--- including perhaps
24
even the capacity to benefit from schooling. Here again, he
advocates a governmental corrective in cases where he thinks
spontaneous processes will prove unable provide all children with
a secure family environment. Regarding a secure family
environment, Hayek says: “There can be no doubt that those who
are either wholly deprived of this benefit, or grew up in
unfavourable conditions are gravely handicapped; and few will
question that it will be desirable that some public institution should
so far as possible assist such unfortunate children when relatives
and neighbors fail.”35
In all these cases, Hayek is quick to point out that such correctives
will not provide people with what he calls “real equality of
opportunity.” People differ in many attributes----physical,
dispositional, and intellectual—which government cannot alter. To
seek equality of opportunity in the literal sense of erasing these
differences would produce a nightmare.36 Still, with respect to each
of these goods---income, schooling, and the transmission of
cultural values---Hayek is advocating an equalizing standard. In
this, Hayek’s concern is for equality is substantive, rather than
purely formal or procedural.
25
The correctives Hayek advocates are clearly governmental
correctives. These services are to be provided outside the economic
market, and outside even the markets of charity or good
neighborliness. These policies and programs, by their very nature,
cannot be enacted or enforced via the rules of just individual
conduct that Hayek insists will normally be the proper basis of law
within a liberal society. Laws directing that people be provided a
minimum income or that children of broken families receive
special support are paradigm instances of what Hayek calls taxis,
not of nomoi. Further, and crucially, Hayek insists that such
correctives are fully compatible with the deep principles that
undergird the Great Society. Regarding the levying of tax monies
to support the guarantee of a uniform minimum income, for
example, Hayek insists that “this need not lead to a restriction of
freedom, or conflict with the rule of law.”37 38
Milton Friedman? Notes that a capitalist society, where people are
free to make payments according to product, will be marked by
considerable material inequalities. At any given time, in such a
society, some people will be far more successful materially than
others. However, Friedman claims: “capitalism leads to less
inequality than other systems” (Cap and Freedom 169). And for
Friedman this is not just a by-the-way comment: the claim is
26
offered as a foundational justification for his view. Like many
historical figures in the classical liberal tradition, Freidman too
accepts a condition of material adequacy.
2. Material Egalitarians There…...
Contemporary scholars who advocate classical liberal political
institutions are often thought of as moral (and/or technical)
dinosaurs.39 Because these scholars advocate forms of liberalism
that are enthusiastically capitalistic, it may appear that they affirm
a narrowly formal conception of equality like the one Rawls made
antique. However, many contemporary classical liberals seem to be
committed to some substantive material egalitarian as well.
[[JT: OR: transition by way of Nozick’s introduction of
libertarianism, taken as the philosophically cleaned up version of
the more nuanced, “messier” classical liberal view (quotation to
that effect by Fleischacker)…?].
Loren Lomasky, for example, advocates a state whose main
activities are constitutionally limited to the protection of individual
rights, including, notably the rights of property and contract that
undergird commercial society. Yet Lomasky also thinks the state
27
should be empowered to secure the collective provision of
genuinely public goods (“those for which features of
nonexcludability and nonrivalry of consumption render market
provision awkward”). Lomasky also advocates a safety net for
citizens who fall into difficulties that neither their own efforts nor
the voluntary efforts of others on their behalf can remedy. But on
what grounds does Lomasky advocate the safety net? Is it a purely
strategic concession? Does he advocate it because he has
calculated that a safety net is the least support needed to keep the
lowest classes alive and quite so that they can later be more
effectively exploited by the denizens of the higher classes?
Intriguingly, this is not what Lomasky says. This safety net,
Lomasky tells us, can be thought of as being required to lessen
“strains of commitment” that hold the society together. Without the
planned governmental interventions such as the safety net, those
strains might make the libertarian principles of justice (jt: meaning:
the regime of wide economic freedom) too difficult for the poorest
people to accept. Lomasky’s inclusion of a safety net provision is a
substantial expression of concern for the material well being of the
least well off citizens.
28
Is it significant that Lomasky chooses to justify the safety net in
terms of lessening the strains of commitment? Could Lomasky’s
text be altered, without loss of meaning or plausibility, to say that
those measures needed to maintain social peace so that the
members of the advantaged classes can more effectively go about
their business of exploiting the members of the lower classes? On
the contrary, a concern to lessen the strains of commitment would
seem to signal some sort of moral concern for the actual life
prospects of every citizen. Such a concern could not be readily
captured by a purely formal or procedural interpretation of liberal
equality, far less by tactical terminology of class exploitation.
Lomasky goes further. He emphasizes that, his preferred set of
classical liberal institutions in place, “the positive-sum character of
the remainder of economic transacting will lessen [the strains of
commitment] on all.”40 If the system of market exchange were set
up so as to be zero-sum, this would mean that benefits accruing to
some from transacting would be mirrored by losses borne by
others. By describing transactions under classical liberalism as
positive-sum, Lomasky does not necessarily mean that all parties
will benefit equally from the market transactions in which they
voluntarily engage. Presumably, some will benefit more than
others. But Lomasky’s claim is that even if transactions provide
29
greater benefits to some than others, these transactions work to the
benefit of all the participants, including those they benefit least. He
is eager to claim, that is, that the effects of the operation of the
system of political morality he recommends will be materially
beneficial for all participants. Why does Lomasky find it important
to claim that his preferred political system satisfies that condition?
Lomasky finds it important because he too---whether wittingly or
not----accepts and therefore is tracking some egalitarian-looking
principle of material adequacy.
So too Erick Mack. Mack advocates free-market institutions on the
basis of what Mack calls “SOP”----the self-ownership principle.41
Self-ownership is often thought to provide a philosophical starting
place for classical liberalism that generates the moral divide
between liberalism in modern and classical forms. Mack puts an
interesting twist on this idea. According to Mack, the advocate of
“SOP” can say: “’I am a friend of markets,’ he says, ‘partially
because I expect markets to work as well as friends of markets
expect them to…..[But] If markets do fail conspicuously vis-à-vis
a given individual in ways that worsen her position by blocking her
from bringing her self-owned powers to bear in the world that
person will have a just complaint under the SOP.” 42 Mack too
appears to accept the principle of material adequacy. Indeed, Mack
30
might even be read as affirming the idea, supposedly unique to
modern liberals, that the function of the state is to secure
conditions necessary to the development and exercise of the moral
powers people have as citizens. He certainly tempts that
interpretation. [If Mack could be read that way, then even accounts
of classical liberalism that are founded philosophically on the
principle of self-ownership may turn out to be compatible with a
Rawls-style create-the-conditions-needed-to-exercise-moralpowers understanding of the role of the liberal state….].
Thinkers in the “Arizona School” also often advocate classical
liberal institutions out a concern for the effects of those institutions
on the poorest members of society. David Schmidtz: “It was
suggested at a workshop that Thomas Aquinas needed little
material wealth to flourish in the ways that matter, and my “fetish”
with living in a developed economy ignores this fact. It is a
curious example: Let us agree that Aquinas’s life (1225 – 1274)
was short but sweet. Still, Aquinas was among the most
advantaged in that society, not the least. It is one thing to say the
high priest lives well enough in a materially poor society, and
another to say the least advantaged live well enough.”43
31
[[Add section on Gerry Gaus: “Although today classical liberalism
is often associated with extreme forms of libertarianism, the
classical liberal tradition was centrally concerned with bettering
the lot of the working class. The aim, as Bentham put it, was to
make the poor richer, not the rich poorer (Bentham, 1952 [1795]:
vol. 1, 226n). Consequently, classical liberals reject the
redistribution of wealth as a legitimate aim of government.”]].44
So too: Jason Brennan: “Modern egalitarian liberals often correctly
identify the test of a flourishing society: the end or minimizing of
of domination, poverty, and medical want, and the spread of
education, opportunity, peace, and full political autonomy.”
Brennan implicitly accepts some version of what I call the
condition of material adequacy. He emphasizes the importance of
attending to empirical questions when doing the advocacy work of
what I call political theory (and perhaps also when engaged in the
purely identificatory work of political philosophy). Brennan
worries that modern liberals often do not attend to these issues:
“they quickly move from identifying the criteria of flourishing to
concluding that a just society will enshrine these criteria of
flourishing as the immediate, direct goals by which it constructs its
policy. Unfortunately, little effort is made to determine whether
32
enshrining such goals is an aid, rather than an impediment, to
achieving them. Living by the difference principle via Rawls’
favored institutions, e.g., is a way of enshrining concern for the
poor, but it is not a way of helping them.” Brennan concludes: “
That a society flourishes while living by a set of principles is a test
of those principles. That a society has principles that directly aim
at flourishing is a different matter. If we have to choose between
success and a symbolic concern for success, there is little argument
to made in favor of the latter.”45
3. Material Egalitarians Everywhere?46
It is not only among professional political philosophers that we
find expressions of concern for something like material
egalitarianism. We also find such expressions, for example, among
classical liberal legal scholars. Richard Epstein, for example,
argues that the United States Constitution is a classical liberal
document. “Although inconsistent on several points, the Framers
of the original Constitution, the Bill of Rights, and the Civil War
Amendments did start with some strong preference in favor of
protecting liberty, property, and the social institutions they foster--competition and free trade in all areas of human endeavor.”
Epstein says the Progressive Court had to re-write the Constitution
33
to make it support the very different modern liberal ideal of
governance they preferred: “A good theory of constitutional
interpretation is not one that starts and stops with some rote
meaning of text, but this charge could not be lodged against the
Old Court whose understanding of the need to introduce the nontextual element of the police power shows a sensitivity to structure
and function as well as text. Nor can it be said that the
interpretation that the justices of the Old Court gave to liberty or
property is at variance with ordinary usage or with the larger
mission of strong individual protections under a regime of limited
government.” Epstein, though, says that the Progressives were far
less concerned with fidelity to the law: “They saw in constitutional
interpretation the opportunity to rewrite a Constitution that showed
in every turn the influence of John Locke and James Madison into
a different Constitution, which reflected the wisdom of the leading
intellectual reformers of their own time.”47
While rejecting the expanded economic powers that Progressive
era jurisprudence placed in the hands of the state, Epstein also
objects to libertarianism. Jurisprudentially, he says, libertarianism
is alien to the legal history of the United States: “the Constitution
is unambiguously in the classical liberal tradition.”48 Epstein says
that “pure libertarianism” would have the state treat economic
34
freedoms as legal absolutes. Libertarianism has much in common
with the classical liberal tradition Epstein defends. Both have a
high regard for individual freedom, and so give great weight to the
economic freedoms of citizens. Still, unlike libertarianism, the
classical liberal tradition affirmed by the Founders holds “that
some form of state power is needed to preserve the liberties that
both groups believe should be protected.”49
Thus, Epstein says, the Constitution implicitly recognizes a police
power. This power allows the state to enforce criminal laws against
force and fraud, to prevent nuisances, and to guard against other
rights violations. The Constitution also makes room for eminent
domain, at least under strictly limited conditions. Further it allows
for taxation to provide public goods, and calls for regulations to
limit the monopoly powers of businesses. It also allows the
government to act to protect the natural environment. Of course,
under classical liberalism, there is a presumption against coercive
state action in any of the areas. Legislative measures or executive
actions in pursuit of these goals must prove themselves “well
adapted to the end.”50 The classical liberal tradition provides
greater protection to people’s economic freedoms than does the
modern liberal, “New Court” tradition. Still, the classical liberal
35
tradition rejects the libertarian idea that economic liberties must be
treated as moral absolutes.
Epstein is a constitutional scholar rather than a political
philosopher. He does not always seek to make clear the moral
commitments that support his jurisprudential views. However,
when Epstein does offer moral arguments for the classical liberal
regime, those arguments often reveal a concern for the substantive
effects of classical liberal institutions on all the different classes of
citizenry. Epstein suggests that libertarianism could be attractive
because it seeks to bring about a broadly Paretian idea of
efficiency. Since individuals have the best knowledge of their
preferences, a system that allows them to make exchanges freely is
that such exchanges can reasonably be expected to improve the
situation of at least one person.51 He thinks that exchanges under
the classical liberal regime of wide-but-not-absolute economic
freedom, though, will be even more robustly positive sum.
According to Epstein: “Competition enhances social welfare.”
Thus: “For that social reason, and not for any fascination with the
‘possessive individualism’ that the Progressives denounced, the
[system of competition] should be favored and protected while the
[system of aggression] is deplored and restricted.”52
36
While objecting to libertarianism, Epstein’s reserves his strongest
criticisms for the New Court jurisprudence that sees as having been
pursued in the attempt to change the public philosophy of America
from a classical to a modern interpretation of liberalism.53 Thus
Epstein argues that “the standard interferences with employment
contracts, such as minimum wage laws, antidiscrimination laws (in
competitive markets only), collective bargaining laws, and Social
Security requirements” are unconstitutional. In every case, the
modern liberal state seeks to say that political office holders know
and will protect the true interests of the citizens better than the
citizens themselves. However, Epstein emphasizes, “the
invalidation of those [social democratic] programs rests not on
some narrowly egotistical view of private property….” Instead,
Epstein says that his advocacy of classical liberal institutions rests
on “…the social ground that this view does us more good in the
long run than the endless creation of various ‘unfair’ practices,
such as those under modern labor law, that introduce various forms
of state monopolies, each of which further saps the productive
juices from American society.”54
[add section on Randy Barnett]
37
We find a similar pattern of justification among defenses economic
freedom in the genres of popular literature. Ayn Rand, for
example, famously claims to care only about herself. And she says
that if you want to be like her you should care only about yourself
too.55 How strange therefore that Rand thought it necessary to pen
the following lines: “The skyline of New York is a monument of a
splendor that no pyramids or palaces will ever equal or approach.
But America’s skyscrapers were not built by public funds nor for a
public purpose: they were built by the energy, initiative and
wealth of private individuals for personal profit. And, instead of
impoverishing the people, these skyscrapers, as they rose higher
and higher, kept raising the people’s standard of living – including
the inhabitants of the slums, who lead a life of luxury compared to
the life of an ancient Egyptian slave or of a modern Soviet
Socialist worker.”56
Lest any of Rand’s close readers be led to think that her concerns
about the material well being of her fellow citizens was merely a
concern that they be better off than Egyptian slaves or modern
socialist (or that she might think that capitalism benefits only
people, such as Howard Roark, who are so talented that they can
design sky-scrapers without even the benefit a B.A.), Rand took
pains to point out that capitalism is a positive benefit to all who are
38
willing to engage in productive work: “Capitalism, by its nature,
entails a constant process of motion, growth and progress. It
creates the optimum social conditions for man to respond to the
challenges of nature in such a way as best to further his life. It
operates to the benefit of all those who choose to be active in the
productive process, whatever their level of ability.”57
[add similar bits from Robert Heinlien: The Moon is a Harsh
Mistress.]
[pure pop culture: that t-shirts of Che Guavara vastly outsell those
sporting images of F.A. Hayek-----and, from a purely artistic
perspective, who could complain? So too pop music: something
like: “Advocates of social democracy have John Lennon and Yoko
One; classical libs have, alas, only Rush.” Still, even most hardcharging Rush songs we find: (check “Red Barchetta,” or other
Rush songs, for material egalitarian lines).
4. Caring When Advocating vs. Caring When Identifying
Of course, none of these classical liberal thinkers uses the language
of justice in describing their commitments to material equality of
their citizens. [quotation from Milton Friedman making precisely
39
this point]. So showing that classical liberals care about the
material well-being of citizens is different from showing that they
think all citizens are owed that concern as a matter of social
justice.58 This is a striking difference between the democratic
liberals and constitutional liberals with respect to the value of
material eqalitarianism. Why do constitutional liberals repeatedly
acknowledge the importance of material well being for equal
citizenship within liberal societies but then just as consistently--and sometimes, as with Hayek, even adamantly---deny that their
evident concern for the material well being of all citizens should be
expressed in the language of social justice?
I believe that this is an error on the part of constitutional liberals.
This error that has had a distorting effect on not just on the selfunderstanding of constitutional liberals, but on the selfunderstanding of thinkers in the democratic liberal tradition as
well. It has encouraged democratic liberals in the false belief that
they distinctively carry the banner of concern for substantive
equality. That idea, as we have seen, is the beating heart of the
myth of modern liberalism.
40
Readers for Brown Workshop: the following few paragraphs are
REALLY REALLY REALLY ROUGH…any help much
appreciated…]]
[[Different thinkers in the market-liberal school present different
patterns of material holdings a providing the needed justificatory
support for their view. Occasionally, as with Rand, these thinkers
express their concern for citizen’s material holdings only in weakly
relational, cross-societal terms. Rand’s concern for material well
being seems merely to be that the worst off members of a society
based on the market-liberal principles she recommends will have
greater material wealth than will the worst-off members of nonliberal societies. More often, though, we find thinkers in this
tradition defending their view on the basis of its production of
patterns of material holding that are more robustly egalitarian.
Smith and Hayek, for example, express their concern for citizen’s
level of material holdings in what we might call absolute
egalitarian terms: they claim that their preferred system of
governance will result in all citizens having sufficient material
holdings to make their liberties valuable at all. Others, such as
Madison and Mises, express their concern for material well-being
simultaneously in absolute and relative egalitarian terms. They say
that the outcome of the instantiation of the political principles they
41
recommend will greater material wealth for all and the realization
some desirable boundary of inequality in the holdings of the least
and the most well off members of society. So while all these
constitutional liberals are material egalitarians, we find different
authors presenting different material egalitarian patterns as
providing the needed justificatory support for their political
views.59
However, in the variation of their formulations, the constitutional
liberals are again much like the contemporary democratic liberals,
who hitch their wagons to different specific patters of material
egalitarianism. Indeed, many of the central debates in academic
political philosophy over the past twenty-five years have centered
on disputes as to precisely which of the many rival high liberal
conceptions of material egalitarians is the right one. Dworkin, for
example, seems to think that the liberal commitment to equal
freedom can allow a greater range of material inequalities
between citizens than does Rawls. Some close followers of Rawls,
notably Norman Daniels and Thomas Pogge, argue that Rawls’s
own preferred principles allow too much material inequality.60 So
too, Will Kymlicka: “The ideals of liberal equality are compelling,
but they require reforms that are more extensive than Rawls or
Dworkin have explicitly allowed.”61 Other high liberals, Erin Kelly
42
and Samuel Freeman for example, appear to believe that that
degrees of material inequality Rawls’s formulation of justice as
fairness would allow gets it just about right.
The key point, though, is this: a moral concern for material
equality, or the alleged failure to be sensitive to material
egalitarian issues, cannot in itself usefully distinguish the
constitutional from the democratic liberal tradition. Democratic
liberals are indeed committed—in their various preferred specific
formulations---to the ideal of material equality. But, as a
constraint at the level of regime advocacy at least, constitutional
liberals seem also to be committed—in their various preferred
formulations--- to some material egalitarian ideal too.
But so far I have only shown that constitutional liberals seem to
have some as-yet under-theorized commitment to substantive
equality at the level of regime advocacy.(peering into the pool,
trying to make out the shifting, broken images we see in classical
liberal regime adovacy arguments). Can these amorphous
commitments be described as somehow reflecting a higher level
commitment to an egalitarian conception of social justice, a
commitment affirmed at the identificatory level of political
philosophy?? In this chapter, I have merely attempted to gather
43
some materials for that project.62 To fully exposit constitutional
capitalism on the identificatory of political philosophy, we must
accomplish to further tasks. One is to work these materials into a
conception of social justice that captures all the main features of
the modern liberal view of justice (roughly: justice as fairness); the
other is to demonstrate that the classical liberal institutional
regime includes institutional “arrangements” that might realize
that conception of justice, at least as a matter of ideal theory
analysis. Let’s turn now to those tasks.
44
Endotes:
That is, all these classical liberals could be read as implicitly affirming the
Master Value I mentioned in The Great Divider chapter. In Freeman’s
formulation: “The primary role of democratic government is to maintain the conditions for realizing
1
“a moral ideal of persons as free and equal self-governing agents who have an essential interest in
maintaining their freedom, equality, and independence” FREEMAN 51.
2
Here’s a beginning of such a list, though I can quintuplicate it: Thomas Nagel, Will
Kymlicka,, Joshua Cohen, Norman Daniels, Amy Gutmann, Stephen Macedo, Samuel
Freeman, Martha Nussbaum, William Galston, Cass Sunstein, David Estlund, Jeremy
Waldron, Charles Larmore, Donald Moon, Dennis Thompson, Corey Brettschnieder,
Kent Greenawalt, Mariah Zeissberg etc etc etc etc
3
Quotation from Kymlicka….
Get cite, clean up quotation.
5
“Some Considerations of the Consequences of the Lowering of Interest and the Raising the Value of
Money” (1691). http://socserv.mcmaster.ca/econ/ugcm/3113/locke/consid.txt. I thank Dennis Rasmussen
for bringing this passage to my attention.
4
6
Locke:
“Charity gives every Man a Title to so much out of another’s plenty, as will keep him
from extreme want, where he has no means to subsist otherwise…” (First Treatise, I.4.
sect. 42)
7
8
[Liberty Fund edition p. 37 --fill out].
“The Grumbling Hive” (1705), in *The Fable of the Bees*, Indianapolis, Indiana:
Liberty Classics, 1988 (1732 edition).
9
Dennis R. conversation: suggests that, like Rawls, Smith could be interpreted as being
concerned to address inequalities ex ante rather than merely seeking ex post “repairs.”
Thus, DR says, Smith’s advocaty of programs of education, esp for children of
laborers….
10
Check with Dennis Rasmussen re proper citations to him and other for all these smith
paragraphs, and this line about Malthus in particular. In this draft, I am simply quoting
D.R. quoting Malthus. Get citations from Malthus, and Rasmussen.
(from Rasmussen email message of 1 march 07, who cites WN
IV.viii.4, 644; see also IV.viii.49 660).
12
(Rasmussen cites WN I.viii.36, 96).] also get citations to that
recent Vanderbilt law prof article on rationale for Smith’s plan for
proportional taxation---sent to be by Dave E summer ’08.
11
13
Rasmussen writes: “His concern for the lot of the poor in an atmosphere that
discouraged such concern led Gertrude Himmelfarb to claim that even if the Wealth of
Nations was not novel in its economic policy recommendations, ‘it was genuinely
revolutionary in its view of poverty and its attitude toward the poor’” (email of 1 march
07).
45
(Rasmussen cites ED, 567; see also LJ, 83, 343; WN I.viii.27,
91.)]
14
15
16
Get citations to all. Also check new book on Madisonian jurisprudence by George Thomas….
Stephen Holmes, Passions and Constraint: On the Liberal Theory of Democracy,
University of Chicago Press, Chicago: 1995, 29-30, emphasis mine.
17
18
“James Madison (FED 5), like Hayek, feared all attempts to politicize the distributional
struggle of the market place” (socialists from Canadian conference: Democratic Equality:
What Went Wrong?, intro, around page 10-13ish). Jt perhaps use this when return to the
question of means? After all, my aim here is just to demonstrate the Madison et al. share
the material egalitarian ideal with the high liberals….
“On hailing a cab in a London street, it
is surprising how frequently the door is officiously opened by one
who expects to get something for his trouble. The surprise lessens
after counting so many loungers about tavern doors, or after
observing the quickness with which a street-performance, or
procession, draws from the neighboring slums and stable-yards a
group of idlers. Seeing how numerous they are in every small area,
it becomes manifest that tens of thousands of such swarm through
London. ‘They have no work,’ you say. Say rather that they either
refuse to work or quickly turn themselves out of it. They are simply
good-for-nothings---vagrants and sots, criminals and those on the
way to crime, youths who are burdens on hard-worked parents,
men who appropriate the wages of their wives, fellows who share
the gains of prostitutes; and then, less visible and less numerous,
there is a corresponding class of women.”Spencer The Man versus
the State Liberty Fund “The Coming Slavery” p.32.
19
The lines before the quoted passage read:
20
[[JT: Perhaps add bit about how people on the left are eager to tie spencer’s advocacy of capitalism with
literal social Darwnism----eg capitalism as a program of cultural eugenics (eg Flieschacker’s strange
argument to this effect). Exegitically, not at all clear that Spencer was a social Darwinist in this sense. But
even if so: eugenicism is not unique to classical liberalism: G.H. Meade’s seminal proposal for “propertyowning democracy” includes eugenicists elements, and more explicitly than Spencer. (Common among
Progressives, Carrie Buck case, etc.)]].
Man vs the State, 69-70). Jt cross-check this citation with my
copy
of the pamphlet exchange between Spencer and Hyndman.
22
21
Perhaps build in section on Spencer’s advocacy of radical land reform---check research folder on
Spencer for materials.
23
Human Action, p. 834.
46
(Liberalism: In the Classical Tradition. 164-5----citation here is
from JT old paperback---get page citation to new Liberty Fund
edition.
24
25
Further, its clear that Mises thinks his acceptance of this condition has a
JUSTIFICATORY role in his defense of classical liberal institutions. Thus: “In seeking
to demonstrate the social function and necessity of private ownership of the means of
production and of the concomitant inequality in the distribution of income and wealth, we
are at the same time providing proof of the moral justification for private property and for
the capitalist social order based upon it” (Liberalism: The Classical Tradition, Liberty
Fund, 2005: p.14.
26
jt note: I’m accepting the idea that dem liberals accept the condition of material
adequacy. But note that, ironically, it is not entirely clear that they. This is because
democratic liberals, more than constitutional libs, have followed Rawls’ lead into the
exposition of their view on the purely ideal/philosophical/identificatory level…Jay’s
paper on the possible paradox this generates for them…
27
tid bit from wikipedia: “Hayek also rejected the label "laissez faire" as originating from
the French tradition and alien to the beliefs of Hume, Smith and Burke.”
(“Liberalism” 5 of 15, reprinted chapt 9 New Studies, update
citations to that source).
29
(2 of 15).
28
30
F.A. Hayek noted,
"The proletariat which capitalism can be said to have 'created' was thus not a proportion
of the population which would have existed without it and which it had degraded to a
lower level; it was an additional population which was enabled to grow up by the new
opportunities for employment which capitalism provided."[40] CONSTITUTION OF
LIBERTY (NO PAGE GIVEN!)
31
In The Road to Serfdom, Hayek suggests his openness to regulations concerning the “use of certain
poisonous substances” or to “limit working hours”---indeed, according to Hayek, the “only question here is
whether in the particular instance the advantages gained are greater than the social costs they impose”
(Road 43), quoted in Gaus “Why All Welfare States…Are Unreasonable” p. 31.
32
Mirage 87. For a similar position, see Milton Friedman….
33
Mirage 87
34
Mirage 84. Again, for a similar position, see Milton Friedman….
35
Mirage 87
36
Kurt Vonnegut’s short story, Harrison Bergeron.
37
Mirage 87. A puzzle for JT, the next sentence in the text reads: “The problems with which we are here
concerned arise only when the remuneration for services rendered is determined wholly by authority, and
the impersonal mechanism of the market which guides the direction of individual efforts is thus
suspended.” {I don’t yet understand how this claim coheres with the sentence I quote in the main text
above.}
38
[[perhaps hayeks commitment to evolutionary rationalism
explains why/requires that he reject the idea of social justice. That
is, perhaps evolutionary rationalism goes all the way down for him,
47
such that all values are evolutionarily selected (jt: see notes from
discussion of this in ps217, file named: “PS217 chpt4,5.doc”).
See also Keith hankins paper on Oakeshot’s critique of
Hayek---Rationalism in Politics: page 10)38. what should
the minimum income be? Or better: what should the distribution of
basic rights and good be? Perhaps hayeks commitment to
evolutionary rationalism requires that he say that we cannot know
in advance: a discovery procedure: the question about basic goods
and liberties is thus just like the question, how many nikes should
their be? Call this Pure Discovery View: …all questions
regarding the distribution of material goods, including questions
about what the lowest income in society should be, are mere
objects of discovery. Adam Tebble defends an exegetical reading
along these lines: get latest version from him. Often attributed to
Hayek. But does not square with the text----most notably with
passages when he affirms social justice as concept….
39
(what do I do with Nozick? Does he accept the condition of material adequacy? Is he a
“classical/lowliberal in my sense? Does he work at level of nonideal theory, like all these
others, or is he (Erik Mack) the only ideal theory advocate?)
40
Loren Lomasky, “Libertarianism at Twin Harvard” Social Philosophy & Policy 2005,
192. Lomasky is here expositing the conception of libertarianism he prefers through the
mouth of a character he calls Twin Rawls---thus his employment of the Rawlsian
technical phrase ‘strains of commitment.’
41
[[JT NOTE: Jay Brennan recently called my attention to this line by Mack. I need to read the article in
full and fix this paragraph accordingly. Till then, every exegetical claim made here about Mack’s position
should be taken as provisional.]]
48
Erick Mack “Self-ownership, Marxism, and Egalitarianism: Part
II: Challenges to the Self-Ownership Thesis” PP&E 2002; 1; 237,
emphasis mine.
43
(Elements of Justice, 177—emphasis in original? Jt check.) JT:
do more with schmidtz---LOTS of good material for me here---bits
about all boats rising, implicitly suggesting that if all boats did
NOT rise this would count as mark against. Those passages also
make clear that he’s operating at the level of ADVOCACY--though need to sort out how Schmidtz’s consequentialism seems to
blur my political theory vs political philosophy distinction…..
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So too, Gerry Gaus: “Although today classical liberalism is often
42
associated with extreme forms of libertarianism, the classical
liberal tradition was centrally concerned with bettering the lot of
the working class. The aim, as Bentham put it, was to make the
poor richer, not the rich poorer (Bentham, 1952 [1795]: vol. 1,
226n). Consequently, classical liberals reject the redistribution of
wealth as a legitimate aim of government.” (quotation in text is
from Stanford Encyclopedia of Philosophy, get primary source
quotations from Gaus). Gerald Gaus, The Modern Liberal Theory of Man. New
York: St. Martin's Press, 1983. ‘Public and Private Interests in Liberal Political Economy,
Old and New’ in Public and Private in Social Life, S.I. Benn and G.F. Gaus, eds. New
York: St. Martin's Press, 1983: 183-221. ‘Property, Rights, and Freedom,1994, 11 Social
Philosophy and Policy: 209-40. Justificatory Liberalism: An Essay on Epistemology and
Political Theory. New York: Oxford University Press, 1996; Political Concepts and
Political Theories. Boulder, CO: Westview, 2000. [GREAT
BITS FROM
JERRY GAUS: “Why All Welfare states (includidng laissez-faire
ones) are Unreasonable” SP&P 1998, 30-31: Gaus offers survey of
classical liberals who justify the state in terms of its propensity to
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deliver welfare. His discussion inclues a useful list of nonmarket
regulations that classical libs advocate. Most important, though,
Gaus also give an argument, about why classical libs should NOT
rely on these sort of “instrumentalist” arguments….Need to study
this: on a quick read I did not find it persuasive, but lots of good
materials here to help me elucidate my pol phil vs pol theory
distinction…].
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“Rawls’ Paradox, Constitutional Political Economy (2007) 18:287-299, p. 288. Intriguingly, in the
conclusion of his article Brennan writes: “Rawls’ assumption that one can do ideal theory first, and then
look at compliance issues and how institutions actually work second, may be what leads him to problems
mentioned in this paper. Further empirical investigation may show us that the solution is to abandon some
of Rawls’ favored institutions even if we should keep his theory of justice” p. 298, emphasis mine.
46
47
134-5. Epstein comments: “The manifest irony here is that the same intellectuals who attacked the
members of the Old Court because of their narrow and prescientific point of view were guilty of a massive
disregard of the basic established principles of economics there were well known to Adam Smith and
David Ricardo. Those principles were trampled by the mercantilist impulses of the day. No judgement
about social welfare can be made simply by celebrating the gains to one preferred group….The only
programs that should survive are those that produce some net social improvement.” (73).
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16. 134-5.
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16.
50
17
51
14.
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16. Also: “The private voluntary contracts that may result [under classical liberal institutions] are
positive-sum games for the parties to them, and whatever harm ordinary contracts of sale and hire wreak
upon competitors (and it is real harm, no doubt) is more than offset by the gains to the parties and to
consumers. We are all systematically better off, therefore, in a regime in which all can enter and exit
markets at will than in a social situation in which one person armed with the monopoly power of
government, ca license or proscribe the actions of others.” (15). See also 74.
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Add general citation here to Epstein Takings, (1985?).
How the Progressives Rewrote the Constitution Washington, DC:
Cato Institute, 2006, p. x-xi, emphasis in original.
(see, eg, The Virtue of Selfishness).
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55
56
57
“The Monument Builders” from The Virtue of Selfishness
“The Divine Right of Stagnation.”
5858
Freeman: “The major historical representatives of the liberal
tradition (Locke, Adam Smith, Kant, Mill, and so on) also accepted
that one of the roles of government is to provide for the poorest
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members of society when they are unable to provide for
themselves. But only a few of them saw this as a duty of justice
(not simply public charity), the benefits of which the poor could
claim as a right.
Different still is the idea of distributive justice, in the
modern sense of a just or fair distribution of income and wealth.
Rawls suggests that unlike society’s duty of assistance, its duty of
distributive justice has no ‘target’ or ‘cut-off’ point….This idea of
distributive justice is relatively recent….” RAWLS 86-7. See also
Fleischacker.
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From conversation w/ keith hankins 12 July 2008:
Jt: distinguish three positions: 1. Formal egalitarians: care about
everyone but formal/legal/procedural only[that is, say the
JUSTICE requires this]; 2. Material egalitarians: have substantive
concerns about the worth of everyone’s liberties---ie express
concern re how those at the bottom will do ok [that is, JUSTICE
requires this]; 3. Material equalitarians: that inequalities in the
worth of liberties experienced by different classes of citizens
should be limited [again, JUSTICE]. These three different view
think about “class” in different ways: 1.: no legal disabilities, but if
system operates so that classes emerge that is ok; 2.: system must
operate so that no underclass develops; 3.: system must operate so
that no non-talentbased classes emerge. (positively: so that the
only social striations that emerge are those based on talentgroupings).
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60
Daniels “Equal Liberty and the Unequal Worth of Liberty” in Reading Rawls: Critical
Studies on Rawls’ ‘A Theory of Justice’ Stanford, CA: Stanford University Press, 1975:
253-281; Pogge Realizing Rawls Ithica, NY: Cornell University Press 1989: 127-148.
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Kymlicka Contemporary Political Thought, p. 87.
Still, even the bare materials assembled here are enough to make
unsteady the suggestion that libertarianism should be thought of as
a cleaned up version of the traditional classical liberal view. More
important, these materials will help us see the shape of the theory
of social justice that might be affirmed by classical liberals.
Compared to libertarianism, this theory coheres more closely with
the arguments of actual thinkers in this rich tradition. This theory
also is more attractive than libertarianism on purely moral grounds.
Both exegetically and morally, therefore, constitutional capitalism
will prove itself as the superior interpretation of the classical
liberal view.
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