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CONSTITUTIONAL CAPITALISM:
Economic Freedom, Social Justice, and the Myth of Modern Liberalism
JOHN TOMASI
Draft of 9/10/08: please do not cite.
Chapter 2: Constitutional Capitalism
I would like to defend a view of liberalism that I call constitutional capitalism. Like
libertarianism, constitutional capitalism is an interpretation of classical liberalism. As we
saw in Chapter 1, advocates of social democracy often treat libertarianism as the premier
representative of the classical liberal view. However, I believe that constitutional
capitalism is superior to libertarianism on a number of dimensions.
First, while Nozickian libertarianism is often treated as a philosophically sophisticated
expression of earlier classical liberal views, Nozickian libertarianism has been criticized
(appropriately, in my view) for its lack of deep foundations.1 But, as we shall see,
constitutional capitalism has foundations that go much deeper than those of Nozickian
libertarianism. Indeed, the foundations of constitutional capitalism run at least as deep as
the foundations of any of the best modern liberal defenses of social democracy. What’s
more, while the libertarian approach to “cleaning up” the earlier expressions of classical
liberalism involved rejecting many of the state-sponsored programs that gave traditional
classical liberal views their distinctive nuance and shape (e.g. Smith’s support for wide
public education for children of factory workers, Hayek’s support for a guaranteed
minimum income), constitutional capitalism provides a more sophisticated approach to
these issues. Rather than lopping off such programs as errors or practical concessions,
constitutional capitalism provides a framework that can explain why classical liberals
traditionally advocated those particular tax-funded programs even while retaining their
strong objections to a more expansive role for the liberal state. Indeed, constitutional
capitalism can even explain very fine details within the classical liberal tradition----for
example, it can why classical liberals sometimes disagree among themselves about
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precisely which programs the state should support and which it should not.2 Finally, and
most important, constitutional capitalism is superior to libertarianism when viewed from
the perspective of basic liberal values. If advocates of social democracy are interested in
considering a rival to their preferred ideology, it is constitutional capitalism rather than
libertarianism that they need to study.
What is Constitutional Capitalism?
Constitutional capitalism is a distinctive liberal view. It combines institutional insights
from classical liberalism with moral insights from modern liberalism. Speaking loosely,
we might say that constitutional capitalism builds a traditional classical liberal
institutional home atop a modern, egalitarian liberal justificatory foundation. To invoke a
distinction from the previous chapter, constitutional capitalism fits together the
evolutionary rationalism characteristic of the British liberalism of Smith, Hume, and
Hayek with the constructivist rationalism of the European liberalism of thinkers such as
Rousseau, Kant and Rawls.3 The distinctive features of constitutional capitalism are best
brought out by contrasting it, on the one hand, with the social democratic views
advocated by modern liberals and, on the other, and the libertarian interpretation of
classical liberalism. I shall now describe that contrast. By doing so, I hope to provide a
preliminary architect’s sketch of the constitutional capitalist structure I hope to erect in
this book.
Samuel Freeman has offered an influential critique of libertarianism.4 As Freeman says,
for modern liberals such as Rawls, the primary role of democratic government is to
maintain the conditions for realizing “a moral ideal of persons as free and equal self-
governing agents who have an essential interest in maintaining their freedom, equality,
and independence.”5 The pursuit of those conditions serves as a kind of master value for
thinkers in the modern liberal tradition. But, Freeman argues, close examination shows
that libertarians do not affirm that master value. Instead, the master value that libertarians
affirm—the principle of self-ownership---makes their view closer to a political view
against which liberalism historically defined itself: feudalism.
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Modern liberals advocate various forms of social democracy---welfare-state liberalism,
property-owning democracy, or liberal socialism---as institutional means for realizing the
substantive egalitarian conceptions of justice they affirm. Social democracies seek to
realize the value egalitarian liberalism through an institutional division of labor, with
some values being entrenched constitutionally and others being assigned to the control of
democratic legislative processes.6 Thus, as Freeman says, “Rawls’s first principle of
justice provides a basis for determining constitutional essentials and the second principle
provides a basis for deciding matters of basic justice.”7 The basic liberties set out by the
first principle of justice as fairness are inalienable. After all, Freeman explains, “what
makes a liberty basic for Rawls is that it is an essential social condition for the adequate
development and full exercise of the two moral powers of moral personality over a
complete life.”8 None of the basic liberties can be treated as “absolute” or somehow
“more basic” than the others. Instead, tensions between them are to be decided so as to
maintain a “fully adequate basic scheme”---fully adequate, that is, in to maintaining the
conditions of free and equal citizenship.9 In calling this scheme “fully adequate”, Rawls
means that the maintenance of such a scheme of inalienable basis liberties is a necessary
condition to the realization of liberal justice, as set out by the master value above.
Crucially, for modern liberals such as Rawls, only people’s civil and political liberties are
to be treated as constitutional essentials. People’s economic liberties---for example, their
right to hold and make use of private productive property, their right to enter into
economic contracts----are not among the basic liberties. Rawls’s second principle, which
concerns matters of basic justice, mainly addresses questions of social and economic
inequality: including matters bearing on equal opportunity, the setting of the social
minimum, the specification of property rights, and the regulation of commerce. As
Freeman says, since the best way to address these matters is a subject of reasonable
disagreement, modern liberals assign these matters to be addressed by democratic
legislative processes.10 Economic decision-making power is to be placed in the hands of
elected officials.
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What of libertarianism? According to Freeman, “Libertarianism is a doctrine of self-
ownership. Absolute rights of property and freedom of contract are its most fundamental
liberties.”11 Because libertarianism treats economic liberties as the most fundamental
liberties (or, perhaps, as the only fundamental liberties), libertarianism rejects the
inalienability of people’s civil and political liberties. It would allow people who were
willing to alienate their own liberties, or those who sought to gain control over the
liberties of others, to enlist the aid of the state in the project. Thus, libertarianism would
require the state to enforce contracts by which people sold their votes, their right to speak
or to practice a religion of their choice, or even contracts by which people sold
themselves into slavery.12 But, from the modern liberal perspective, the development and
free exercise of these civil and political liberties are essential to people’s moral nature. A
state that does not protect those liberties does not preserve the conditions necessary to the
development of citizen’s moral powers.
Further, and as a consequence of the absolute institutional primacy that they assign to
economic rights, libertarianism does not allow taxation to support the provision of a
social minimum. [[get representative quotation from Spooner or others: taxation is
robbery, etc.]]. But for modern liberals such as Rawls, the public provision of a social
minimum is needed to guarantee the effective exercise of citizen’s basic liberties. People
need this minimum so that they might develop the moral capacities they have as citizens.
Freeman says, “Views such a libertarianism, or those classical liberal views which
entirely deny a social minimum, are unreasonable, Rawls contends, since a social
minimum is necessary to the adequate development and full exercise of the moral
powers, and to pursue a rational conception of the good.”13 In all these ways, then,
modern liberals argue that libertarianism falls short from the perspective of basic liberal
values. Indeed, Rawls suggests that, since libertarianism violates the liberal principle of
legitimacy, it should not even properly be counted as a liberal view at all.14 Freeman says
that libertarianism not only should not be counted as a liberal view, but is actually
strikingly like a view that liberalism historically defined itself against: the doctrine of
private political power that is feudalism.15
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However, constitutional capitalism is not libertarianism. Constitutional capitalism is a
distinctive interpretation of classical liberalism. Compared to libertarianism,
constitutional capitalism is more true to the nuance and complexity of the institutional
forms that thinkers in the classical liberal traditional have long advocated. Indeed,
constitutional capitalism is more similar institutionally to traditional forms of classical
liberalism precisely because constitutional capitalism is founded on a concern for social
justice.
Thus, constitutional capitalism affirms the modern liberal “master value” I mentioned
above. For constitutional capitalists, the primary role of democratic government is to
secure and maintain the social conditions necessary for realizing “a moral idea of persons
as free and equal self-governing agents who have an essential interest in maintaining their
freedom, equality and independence.”16 Constitutional capitalism affirms a distinction
between constitutional essentials (basic liberties) and matters of basic justice. That is,
constitutional capitalism asserts that social justice is best realized by means of an
institutional division of labor, with some aspects of justice realized by means of the
constitutional entrenchment of substantive values, and other aspects of justice to be
placed in the hands of democratically elected officials. Further—although it is no part of
constitutional capitalism----constitutional capitalists are free to join those modern liberals
who reject libertarianism as unreasonable, on the grounds that the libertarian claim that
economic liberties are absolute effectively requires that libertarianism treats basic civil
and political liberties as alienable.
However, unlike social democratic liberals, constitutional capitalists emphasize the
importance of economic freedom to the moral well being of citizens. In particular,
constitutional capitalists are liberals who assert that the economic liberties of citizens,
like their civil and political liberties, must be included in a fully adequate scheme of basic
liberties. Liberals have long argued that personal liberties such as freedom of speech may
be regulated or limited to protect to fully adequate scheme of basic liberties. So too,
according to constitutional capitalism, the basic economic liberties of citizens, such as the
right to amass private property or to enter into economic contracts, may properly be
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regulated and limited in order to maintain the other basic liberties. But with personal
speech so too with economic contracts, attempts by legislative coalitions to limit the
freedom of citizens must pass a high degree of judicial scrutiny. As a matter of
institutional design, constitutional capitalism affirms that economic liberties of citizens
should be constitutionally entrenched along with their civil and political liberties. Such
entrenchment, on the constitutional capitalist view, is necessary to securing and
maintaining the social conditions in which people can develop the moral powers they
have as free, equal and independent citizens.17
Modern liberals sometimes elide the libertarian and the classical liberal positions on this
vital point. For example, Freeman refers to “Rawls’s rejection of the libertarian and
classical liberal position that unrestricted economic freedoms are among the basic
liberties.”18 But the constitutional capitalist view I am proposing does not affirm
unrestricted economic freedoms. It affirms the economic freedoms of citizens as basic
and yet “restricted.” Economic liberties are not absolutes, nor are they in any sense “more
basic” than people’s civil and political liberties. Constitutional capitalism is a liberal view
that sees economic liberties as working along with the civil and political liberties as vital
components of a fully adequate scheme.
For this reason, constitutional capitalists can join the modern liberals who say that the
liberal state should be empowered to provide a social minimum funded by a system of
taxation. Constitutional capitalism gives no support to the view that taxation is always
theft. Further, constitutional capitalists recognize that there can be reasonable
disagreement about the proper shape of that social minimum (regarding both the type of
taxation system, and the type of delivery mechanism, for example). For that reason,
constitutional capitalists join the social democrats in affirming that institutional details
about that minimum should be left to be worked out at the legislative stage by
democratically elected officials. Unlike the social democrats, however, constitutional
capitalists assert that legislative proposals in pursuit of the social minimum must pass a
high degree of judicial scrutiny. Democratically dominant factions cannot be allowed to
impose schemes that violate the economic liberties of citizens. Such schemes would
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disrupt the fully adequate scheme of basic liberties, and thus eroding the conditions
necessary for the development and exercise of people’s moral powers.19
As Freeman correctly notes, an implication of the claim that economic liberties should be
treated as equally basic as citizens’ other personal and political liberties “is that it limits
considerably a liberal society’s ability to regulate the uses of property, economic
contracts, and business transactions and activities.”20 However, and equally, an
implication of the claim that economic liberties should not be treated as basic is that it
considerably expands the economic decision-making power that is placed in the hands of
democratically elected officials.21 Three decades of scholarship by the public choice
school of economics has alerted us to the dangers of such an approach when conducted
against the background of a broadly capitalist economy.22 One response to the
provocative findings of public choice economists is to ignore those findings.23 For
example, without necessarily taking any position regarding the plausibility of central
public choice theses (such as the theory of government failure), one might deny the
relevance of such empirical work to the problem of moral justification, and then attend to
public choice concerns no longer. This approach seems to me a form of philosophical
turtling.24 A more politically responsible approach, I believe, would be to think hard
about different levels of political argumentation and then seek to assess the claims of
public choice at the appropriate argumentative level. Constitutional capitalism, as we
shall see, seeks to take that latter approach.
Constitutional capitalism fully affirms the modern liberal insight that the worth of
citizen’s freedoms is importantly connected to their personal control of adequate material
and social resources. It also affirms the idea that material distributions are never really
“natural” but instead are always heavily conditioned by the society’s basic institutional
forms: in liberal democracies, citizens must take responsibility for predictable
distributions of goods because those citizens bear ultimate responsibility for the shape of
their society’s basic institutional forms. Constitutional capitalism affirms all these
important ideas.25 It simply notes that it is an empirical question as to which regime type,
constitutional capitalism or social democracy, is best suited to bring about and maintain
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the social conditions needed for people to develop the moral powers they have as free and
equal citizens. For this reason, the choice between (some version or other of) social
democracy and (some version or other of) constitutional capitalism is one that must be
made at the argumentative level where we consider questions of feasibility. At the level
of moral identification, where we ask which regime types “realize” the values of liberal
justice, no a priori choice can be made between constitutional capitalism and social
democracy.
To highlight the main features of this preliminary sketch: constitutional capitalists, unlike
libertarians, do not treat economic liberties as absolute or somehow more basic than civil
and political liberties. Constitutional capitalists are liberals who think economic liberties
should be included as part of the fully adequate scheme of basic liberties. Social
democrats are liberals who think that only personal and political liberties should be part
of the fully adequate scheme. As I just suggested, I believe that ultimately the choice
liberal citizens must make between constitutional capitalism and social democracy must
be made on empirical grounds of feasibility. To see why, though, it is vital to see that the
defense that I will be offering of constitutional capitalism is primarily a moral defense,
one conducted at the same high level of moral abstraction on which the best modern
liberal defenses of social democracy have been offered. To make sense of these ideas,
and to understand the power of constitutional capitalism, it is vital that we distinguish
between three levels of political argumentation: political philosophy, which is the level of
moral identification; political theory, which is the level of long term regime-type
advocacy; and public policy, the level of immediate political campaign. No sense can be
made of constitutional capitalism without understanding, and attending to, the
distinctions between these three levels of political argument. Let’s turn now to those
distinctions.
‘Utopophobia,’ Philosophilia and Political Responsibility26
The word “philosophy,” famously, is derived from the Greek words, philos, love, and
sophia, wisdom. Philosophy is the love of wisdom. Political philosophy, by extension,
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might be expected to denote a love of wisdom about political topics. Traditionally,
wisdom about politics has been understood to require a great breadth of understanding.
Anyone hoping to give advice, or offer evaluations, about how people ought to live
together politically would need to acquire and make use of a nuanced understanding of
many facets of the human social condition: history, economics, sociology, religious
studies, institutional theory, moral philosophy and more. One would need this breadth of
understanding because recommendations about politics are ordinarily understood to be
recommendations for people in our world, a world in which reality rarely conforms
precisely to theory on any single disciplinary dimension. Political wisdom might seem to
require that when we think about how our world ought to be institutionally, we think
about the practical consequences of our institutional recommendations. This would
require that political theorists attend not only to how things might possibly turn out. It
would require that they think about how things are likely to turn out as well.
For example, in considering how our society ought to be organized politically, we cannot
assume that people will always comply with the rules and the norms that guided the
writing of those rules. It would be foolish to recommend a particular set of political
institutions if our recommendation is based on the expectation that the individuals who
take up the positions in those institutions will always behave precisely as we think they
ought. Much experience suggests, and a growing body of theoretical literature confirms,
that political institutions often generate perverse incentives---incentives that,
unfortunately, lead people to act against the very norms theoretically attached to the roles
political institutions set out.27 Similarly, just because a regulation or law is intended to
have some particular effect on society, we cannot assume that that the regulation will
produce the desired effect (or that it, in producing a desired effect, that regulation will not
also produce a variety of unwanted effects as well).
So too, from a different perspective, we cannot assume that markets will always work
perfectly so that, for example, exchanges will be positive sum for all participants, or that
the principle of comparative advantage will produce immediate benefits to all. Again,
experience suggests, and theory confirms, that in the real world markets often do not
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work that way. Variations in social conditions, the character and behavior of particular
actors, as well as the specific rules governing any property rights regime, always
influence how close to, or how far from, actual markets will come to realizing the
expectations charted in our theoretical ideals.
Of course, in light of these real-world deviations from our theoretical ideals, we can
construct explanatory theories about why people, governments and markets do not
function in ways that correspond to our theoretical ideals. We can then build those
theories of “failure” into our original theory, making our theoretical models ever more
sophisticated and predictively powerful. But even then the complexity of social life gives
political reality an uncertainty or, if you like, a stubbornness that renders even our best
explanatory theories mere approximations of the way things really are in any actual
society at any given moment. In recommending any given political system over any
other, therefore, wisdom requires that one not merely consider how things might go when
if all conditions turn out to be favorable on all these dimensions. We must also consider
how things are likely to go, given the stubbornness and complexity of human social life.28
Indeed, when it comes to political topics, wisdom lies primarily in the skill of negotiating
the boundary between theoretical ideals and practical reality.29
Perhaps the most striking characteristic of academic theorizing in the wake of Rawls has
been the willingness of liberal theorists to separate the professional discipline of political
philosophy from the more civic ideal of political wisdom. Following Rawls, modern
liberals in particular have sought to separate out and focus intensively upon a single
dimension of political evaluation: the moral dimension. On this approach, the first task of
political philosophy is not to provide guidance for political action or reform. Rather, that
task is simply to identify principles of justice and sets of institutional regimes that might
realize those principles.30
How are we to go about this task of political identification? Rawls’s answer may surprise
us. For while Rawls’s topic is political, his approach to that topic is purely
philosophical—or at least, it is as purely philosophical as he can possibly make it. He
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does this by invoking a series of modeling assumptions, assumptions that require that we
abstract away from many of the most stubborn facts about human-living together. When
identifying principles of justice, Rawls asks us to evaluate principles on the assumption
that those principles will win the full motivational compliance of citizens. In identifying
principles of justice, we thus are asked to put aside the voluminous economic and social
scientific literature that seeks systematically to explain why some political systems face
greater compliance problems than others. When we turn to the task of identifying
institutional regime-types that “realize” the principles of justice, we are asked to evaluate
rival regimes in ways that are even more idealized. We are to discover which regime-
types would be just by imagining that the institutions of each regime function precisely
according to that regime’s announced intentions and ideals.31 Whether the regime is a
form of liberal socialism or laissez-faire capitalism, we are to imagine that the distinctive
problems that other non-philosophical disciplines tell us plague such systems have been
cured. Thus citizens and elected officials alike always behave as justice requires them to
behave; markets, if the candidate regime includes them, perform as perfectly as envisaged
in their textbook ideals; economic planners somehow have all the information they need
so that every regulation and law produces its desired effects and no unintended ones;
bureaucracies function without friction, waste or expressions of human greed.32 When
asking whether any given regime-type “realizes” liberal justice, we are to imagine that
the sun that shines on it is warm, the rains that fall, gentle.
Many theorists, including those who share Rawls’s enthusiasm for social democracy,
have reacted in a guarded way to the idealization and abstraction that characterizes recent
liberal thought. As William Connolly writes of recent work in the modern liberal
tradition, “the commitment to liberal principles is increasingly matched by the
disengagement from practical issues.”33 After a discussion of Ronald Dworkin’s work,
Kymlicka says, “It is difficult to say exactly what policies the theory reguires.”34
Regarding scholarship in the egalitarian liberal tradition generally, Kymlicka tells us:
“…the relationship between contemporary liberal theory and traditional liberal practice is
unclear. The two have become disengaged in a number of ways.”35
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If people sharing Rawls’s political ideology have reacted cautiously to this movement
toward idealized theorizing, theorists who are more optimistic about commercial society
have reacted with positive alarm. Perhaps this because advocates of economic liberty
sense that they are on strongest ground in their disputes with advocates of liberal
socialism and other idealized political forms when discussions focus on practical
questions about what actually works in the world, rather then on the questions of moral
intention that dominate at the level of ideal theory. [[trace roots of these ideological
tendencies: evolutionary rationalism of British liberalism, and resulting close connection
of that liberal branch to economic science; their concerns about the practical
consequences of historic attempts to implement idealized principles like the constructivist
ones of European “democratic” liberalism----Rousseau, the Terror, traces in later socialist
aspirations. Main point: classical liberals have been especially skeptical of the idealistic
tendencies of Continental liberalism.]]
We see this skepticism expressed concerning the idealized way modern liberals seek to
identify the requirements of justice. Thus, David Schmidtz: “The compliance problem is
not the second step. It is not something to set aside as a task for so-called nonideal theory,
as if the degree of compliance were an exogenous variable that could be dealt with
separately. The compliance problem is an integral part of the first step. When one
chooses a set of rules, one gets a particular compliance problem and a particular pattern
of compliance along with it. Therefore, we cannot begin to know whether instituting a
given set of rules will be to our mutual advantage unless we know how bad its associated
compliance problem will be.”36 [[quotation from David Gauthier Morals by Agreement,
who works within partial compliance theory]]. Similar concerns have been raised about
the idealization Rawls’ employs when evaluating candidate types of institutional regimes
[[get quotation from Jason Brennan “Rawls’s Paradox”, also footnote to Keith Hankins
manuscript]]. Geoff Brennan and Philip Petit also have emphasized the importance of
feasibility concerns when assessing institutions. Brennan and Pettit argue “that normative
theory needs to take compliance constraints seriously and that failure to do so is capable
in principle of undermining an entire normative enterprise.”37
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However, contemporary classical liberals, like the evolutionary rationalists before them,
can’t resist the call to identify the moral foundations of their view. To answer that call,
classical liberals need to engage in some process of abstraction like the one modern
liberals, following their continental forebears, have embraced. As a result of their
hesitancy on this issue, contemporary classical liberals find themselves working in a
methodological position that has become weak and increasingly awkward. Liberal
advocates of economic freedom have one toe dipped in the waters of political philosophy
and their foot rooted in more practical concerns about how things are likely to turn out.
My idea is to give classical liberalism a firm and deliberate push into the ice-cold waters
of ideal theory, and see if it can swim.38
I share the classical liberal conviction that the market-based institutions they advocate
look best when conversations turn to practical questions about how institutions actually
function in the world. I also share the conviction that questions about feasibility must be
assigned some important role within the normative enterprise. The important question is:
where within the normative enterprise do questions of feasibility belong, and where
within that enterprise do such questions not belong?
David Estlund has developed a striking defense of the methodological idealism that
characterizes recent thinking in the modern liberal tradition.39 Normative theory is about
how people should act. Therefore, Estlund explains, when identifying normative ideals it
is appropriate to put aside questions of how we think people will act. A normative
political theory would be utopian in the wrong sense if it required people to do
impossible things. Yet, a theory would be excessively realistic if it allowed practical
concerns about how people are likely to act to drag down the normative bar. Expanding
upon Rawls’s idea of “realistic utopianism”, Estlund argues that the proper domain of
normative thinking about politics lies between what he calls “complacent realism” and
“moral utopianism.”40 Estlund therefore directs our attention to what he calls “the non-
complacent, non-utopian range of normative political theories.”41 Provocatively, Estlund
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thinks that range includes even theories that he characterizes as examples of “hopeless
realism. ” These are political theories that people could possibly live up to, and yet the
probability of people actually doing so is very low and may even be zero. Estlund
vigorously defends such hopelessly realistic political theories. According to Estlund,
“The fact that people will not live up to [such theories] even though they could is a defect
of the people, not of the theory.”42 The project of identifying normative political
principles is the project of determining how things should turn out. To allow that project
to be constrained by worries about how things actually will turn out, Estlund suggests,
would be to fall victim to utopophobia.
Estlund is right to warn us against utopophobia. There is an aspect of normative thinking
about politics that, while recognizing the boundaries of the possible, properly asks us to
abstract away from questions about how things are likely to turn out. I would simply add
to Estlund’s warning a caution against yet another danger of political thinking, a danger
that I call philosophilia. If philosophy is the love of wisdom, philosophilia is the love of
philosophy itself, with or without wisdom. In the context of recent work in liberal theory,
philosophilia is an ardent attraction to idealized forms of political discourse. This ardor
for idealized thinking may blow smoke in our eyes when we turn from questions of moral
identification to even the most general questions of institutional evaluation---let alone to
questions about the normative evaluation of policy changes within actual liberal societies.
Methodological idealization obtains its power by gaining distance from the merely actual.
But the costs of identificatory idealization are paid in the coin of political relevance.
Correctly identifying a range of regime types that might ideally ‘realize’ liberal justice
might in itself tell us absolutely nothing about which of those candidate regimes the
citizens in any actual liberal society ought appropriately work toward at any given time.
Worse, even if we could somehow know which regime to work toward, ideal theory
would not obviously give us any way of knowing which the best institutional path to that
the instantiation of that just regime might be. Starting from a situation of injustice, there
may be many partially-just, and even some less-just, forms that might best lead a given
society to the moral promised land. At its worst, philosophilia can lure even the best
political thinkers into offering tendentious evaluations of policies and party platforms of
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existing liberal societies, evaluations that they have no business making as political
philosophers. While perhaps tempting for crudely ideological reasons, such evaluations
are completely unwarranted if presented as though they were the product of work done in
the domain of ideal theory analysis.43 Responsible thinking about politics, it seems to me,
requires that anyone who advocates methodological idealization also attend to the
problem of explaining how those “set aside” concerns about feasibility can be fit back
in.44
My argument for constitutional capitalism attempts to do just this. Indeed, my argument
turns primarily on distinction between two different levels of political argumentation:
political philosophy and political theory. To understand the moral I am making for
constitutional capitalism, it will be vital that we keep the distinction between these two
levels in mind.
By political philosophy, I mean a level of purely moral discourse about political
questions. This is the level at which one focuses narrowly on the task of identifying the
morally appropriate standard for the evaluation of a society’s basic institutions. The task
of political philosophy is to move from some very general ideas about the moral nature of
persons and society to a determinate set of principles of justice. Political philosophy also
includes the project of identifying a range of institutional regime-types that could in
principle bring about and sustain the social conditions in which those principles of justice
could be satisfied. Political philosophy identifies a conception of justice and a set of
regime-types that might possibly satisfy those principles. The conclusions reached at the
level of political philosophy need not be completely permanent or timeless.
Developments in human genetic engineering, or other very radical changes in technology
for example, might someday require a rethinking of even the very general moral ideas
upon which conclusions reached on this level are based. But political philosophy reaches
out in the direction of the permanent and the timeless.45 Findings here represent our best
philosophical attempt to identify the standards and institutional regimes of justice.46
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By political theory, by contrast, I mean a level not of moral identification but of regime
advocacy. This is the level of argument at which one says which broad type of regime
one thinks is most likely to satisfy the moral standard identified at the level of political
philosophy, in light of the economic, social, and historical conditions of some society (or
set of societies) viewed in a long term, or epochal way. Political theory begins by
attending to the principles of justice and the range of morally permissible candidate
regimes as identified at the level of political philosophy. Then, in light of a broad-gauged
evaluation of social conditions, one advocates one or another of those candidate regime-
types as being most likely to actually satisfy the requirements of justice. Thus, political
theory is the level at which feasibility concerns are brought in, but still only a very
general way. When we advocate one or another type of political regime---say, liberal
socialism or laissez-faire capitalism---as the appropriate goal for some particular society,
or set of societies---say, for the United States of America, or for the set of Western liberal
constitutional democracies---we are operating at the level of what I call political theory.
Note that this distinction between political philosophy and political theory allows for the
carving out of a third level of political argument, a level of what we might call public
policy. Public policy is the level at which, within the regime type adopted at the level of
political theory, and guided by the moral principles identified at the level of political
philosophy, one decides which particular laws, regulations and public initiatives one
ought to pursue. While political philosophy is the level of identification, and political
theory is the level of advocacy, public policy is the level of campaign. Public policy, to
be done responsibly, requires that one make recommendations (or offers normative
evaluations) of near term political questions, guided by the norms identified at the level
of political philosophy but in light of the full range of feasibility constraints described,
say, in the literatures of economics, sociology, history, institutional theory and more. For
example, this is the level at which we might offer normative evaluations of recent
political trends within actual societies, for example the policy “revolutions” led in
American and England by Ronald Reagan and Margaret Thatcher respectively, or Bill
Clinton’s declaration that “the era of big government is over.” Compared to political
philosophy, public policy is an enormously complex, multi-disciplinary task.47
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To fully exposit constitutional capitalism, one would need to work across all three of
these argumentative levels. Only then might one hope to be in position to discharge the
responsibility that most people think makes normative political thinking worth doing (and
funding) in the first place: the responsibility of giving normative guidance to citizens
seeking in good faith to navigate the obstacles to justice confronting them in their
societies.48 I have neither the space nor the competence fully to discharge that
responsibility in this book. Instead, my argument for constitutional capitalism shall run
mainly at the levels of political philosophy and political theory. Most people think of the
dispute between liberals in the Smith/Spencer/Hayek line and those in the
Greene/Dewey/Rawls line as having a fairly simple structure. On each side, the
traditional model tells us, we find a cluster of thinkers affirming (albeit sometimes for
very different reasons) a broadly common conception of liberal justice, a conception of
justice that justifies the respective broad regime type advocated by each school. On this
familiar view, for example, the dispute between modern liberal advocates of social
democracy and classical liberal advocates of commercial society is at base a dispute
about moral values, one that must be reconciled by specialists in the discipline of
philosophy. Allow me to suggest a very different way of understanding the structure of
disputes between rival liberal political regimes.
At the level of political philosophy, recall, we seek to identify a conception of liberal
justice and a set of candidate regime-types that might realize, in the ideal sense, that
conception of justice. For liberals, what conception of justice and what range of candidate
regimes should correctly be identified? I believe that the most morally attractive
conception of liberal justice is a conception much like the view Rawls calls justice as
fairness. [[jt: formulate this carefully: “Rawlsian” rather than “Rawls’s”: primacy to
basic liberties essential to development of moral personality, a list that must include
uncontroversially liberal liberties such as free speech/religion/political liberties; among
those, political liberties need special support (zero sum; imperatival need to avoid
domination by others in the political realm); also substantive conception of equality of
opportunity (something like fair equality of opportunity); also some principle securing
18
the material/social bases needed to make liberties valuable at all (something like
Difference principle).
The second task of political philosophy is to identify regime-types that, in a more perfect
but still possible world, realize this liberal conception of justice. I believe that a strict
adherence to the constraints and motivational impulses of ideal theory reveals that at least
four regimes should be on this candidate list.49 The list includes the three regimes that I
described earlier as marking out the range of social democratic theories. Two of these,
liberal socialism and property-owning democracy, have been defended by Rawls; the
other, welfare-state capitalism, is widely associated with Ronald Dworkin. To these range
of social democratic views, I would like to add a third candidate regime. This is a laissez-
faire interpretation of liberalism that I call constitutional capitalism.
The various regimes of social democracy are widely associated with modern liberalism,
while laissez-faire regimes are often described as classical liberal. By the model I shall be
developing, though, there is no meaningful distinction to be made between “modern” and
classical” liberals when we are engaged in political discussions at the level of political
philosophy. At that level of moral identification, we are all simply liberals. We are
engaged in the common and nonpartisan task of identifying what justice requires and
what regime types might, under the most favorable imaginable but still possible
conditions, satisfy those requirements.
It is only when we move to the level of political theory that divisions between types of
liberals become meaningful. This is the level, recall, in which we begin bringing in
feasibility concerns. We begin discussions about which regime-type we think, in light of
empirical conditions of the society or societies in question, might be most likely to
actually bring about justice. On this approach, the distinction between “classical” liberals
and “modern” ones only is gets born when we turn to these questions of advocacy. I
suppose we could bundle advocates of liberal socialism, property-owning democracy and
welfare-state capitalism and refer to them as “modern liberals.” We might then refer to
constitutional capitalism as a “classical liberal” view and carry on our debates with these
19
(loaded) terms just as before. I have no deep objection to that way of proceeding. One
reason to retain those labels is that they are familiar. One reason to avoid them is that
they may encourage the moral-evolutionary bias of the myth of modern liberalism that I
described in Chapter One. So, I will sometimes use the terms “modern” and “classical”--
-as when I refer to constitutional capitalism as “an interpretation of classical liberalism.”
But one benefit of the schema I am proposing is that it allows us to leave behind those old
labels with no loss, and perhaps with some gain, of intellectual clarity.50
On the model I am exploring, the most significant rivalries among types of liberals are
only born at the level of political theory.51 This is the level at which, in light of broad
gauged empirical realities, one advocates some particular regime-type (or narrowed set of
candidate regime-types) for adoption by a society committed to liberal justice. I believe
that constitutional capitalism becomes especially attractive when considered at the level
of political theory. Compared to imaginary regime-types such as liberal socialism and
property-owning democracy, I shall argue that the institutions of constitutional capitalism
are far more likely to create and sustain across generations the social conditions in which
people can develop the capacities they have as free and equal citizens. Welfare-state
capitalism, I believe, fares somewhat better than the socialist or democratic regime-types:
in part this is because welfarist regimes share some features with constitutional
capitalism. But the institutions of the welfare state are significantly less likely to bring
about and sustain liberal justice than are those of constitutional capitalism. Anyone
concerned to achieve liberal justice in contemporary liberal societies, the United States of
America or the set of Western liberal constitutional democracies, ought therefore to
advocate constitutional capitalism.
Some readers, on assessing the empirical arguments I shall offer in favor of the
institutions of constitutional capitalism, may disagree with my conclusions. They may
come to believe that one of the social democratic institutional forms----welfare-state
liberalism, for example---might be more likely to bring their society to justice and so
ought to be advocated. I am certainly open to this possibility. I am acutely aware that I
lack the expertise in historical, economic, sociological, cultural and institutional theoretic
20
fields that would be needed for me to assert with any confidence that constitutional
capitalism is the regime that gives us our best chance at justice. By advocating
constitutional capitalism, however, I hope to encourage the extension of the range of
normative political discourse within the academy into the more heavily empirically
conditioned domain of normative discourse that I call political theory. Only by passing
through that level and onto the level of public policy could specialists in normative
political thought even begin to consider offering normative evaluations about the recent
political trends of and questions now facing their fellow liberal citizens.
The Challenge to Constitutional Capitalism
There is a significant obstacle facing any version of laissez-faire liberalism, however.
This challenge, which arises at the identificatory level that I call political philosophy, has
been presented most forcefully by Rawls himself. For Rawls, recall, ideal theory is an
intellectual device we use in order to identify which regimes satisfy justice as fairness
and which violate it, assuming that each regime is functioning well in light of its own
publically stated aims and values.52 In the real world, of course, a regime that passes this
ideal level test may fail to actually bring about the set of happy social conditions that
justice requires. Still, according to Rawls, at the level of ideal theory, “we assume that if
a regime does not aim at certain political values, and has no arrangements intended to
provide for them, then values will not be realized.”53 This two part test is the master
criterion for ideal theory level analysis of political regimes.
On these grounds, Rawls suggests that all versions of classical liberalism---what he calls
“laissez-faire capitalism” or “the system of natural liberty”---must be rejected as unjust.
According to Rawls, laissez-faire capitalism “secures only formal equality and rejects
both the fair value of the equal political liberties and fair equality of opportunity.” Rather
than being guided by a conception of social justice, such regimes simply pursue
economic efficiency and growth, perhaps constrained by “a rather low social
minimum.”54
21
I agree with Rawls that if a regime rejects some set of political principles, and if it has no
institutional arrangements intended to help it satisfy those principles, then that type must
be rejected in light of those values. I can also see why, given that test, Rawls thinks that
laissez-faire capitalism violates justice as fairness. After all, thinkers in the classical
liberal tradition loudly and (perhaps) unanimously claim to reject the very idea of social
or distributive justice.55 What’s more, while regime-types that Rawls personally favors
such as liberal socialism include a whole host of institutional features designed with the
explicit intention of delivering to citizens the various components of justice as fairness,
the constitutionally constrained institutional structures of commercial society might well
seem to promise far less to citizens in these areas.
However, I believe that constitutional capitalism can meet both parts of Rawls’s ideal
level challenge. Regarding the institutional challenge, it will almost certainly be true that
a well-functioning constitutional capitalist regime would allow significantly greater
material inequalities between citizens than would, say, a well-functioning property-
owning democracy. On the surface, the material inequalities tolerated by constitutional
capitalism might seem to make the ideal of the fair value of equal political liberty
unattainable under that type of regime. However, the question of how much material and
social equality citizens must experience if they are to experience fair political equality is
not independent of the regime type in which that value is being pursued. Property-owning
democracy, for example, places a great many matters that directly affect the material and
social well being of citizens onto the political agendas of elected bodies in their
societies.56 They do this in pursuit of realizing fair political equality. But this very
method makes citizens in that sort of regime constantly vulnerable to political domination
by others. Constitutional capitalist regimes, as we shall see, seek to secure fair political
equality by a very different strategy. By entrenching economic freedoms, they keep
issues that make citizens vulnerable off the political agenda itself. In this way, we might
say, constitutional capitalism seeks to realize fair political equality ex ante, while social
democratic regimes such as property-owning democracy must constantly work to secure
those values ex post. I believe that this same basic argument can be extended so as to
demonstrate that constitutional capitalism includes “arrangements” intended to provide
22
citizens with all the values of justice as fairness----fair political equality, fair equality of
opportunity, and the difference principle. This does not mean that constitutional capitalist
regimes will actually deliver all those goods---any more than the good intentions of
liberal socialist regimes mean that people who adopted such institutions would
experience them. But when we compare like to like, ideal to ideal, constitutional
capitalism looks at least as attractive as any of the social democratic regimes. And when
we start looking more closely at the political theoretic question of how such regimes are
actually likely to function in our world, constitutional capitalism starts to look more
attractive than any of those others---at least from the perspective of anyone whose
foundational commitment is to justice as fairness (rather, than, say, to the institutions of
democratic socialism).
However, classical liberals like to tell us, they reject justice as fairness. Indeed, they
loudly insist they reject the very idea of social or distributive justice. I believe that this is
a significant error on the part of classical liberals. Let’s turn our attention now to the
classical liberals and the special problems that they face. Over the next two chapters, I’m
going to invite classical liberals to take a good long session on the psychiatrist’s couch.
Classical liberals need this special attention if they are to have any hope of accepting
constitutional capitalism. For in terms of their own basic understanding of themselves,
who they really are and who they really want to be, classical liberals have a whole lot of
work to do.
ENDNOTES:
23
1 Citation to Nagel article “Libertarianism Without Foundations.” 2 Thus constitutional capitalism provides a rationale for understanding even the fine details about the classical liberal tradition, such as the fact---baffling to libertarians---that while most classical liberals (such as Smith and Hayek) advocated tax-funded social programs of some kinds, other pre-Nozickian classical liberal thinkers (such as Mises) rejected such programs almost entirely. Indeed, constitutional capitalism explains how this disgreement can be understood as a reasonable difference of opinions about the empirical operation of institutions, rather than as revealing some grave moral defect or some piece of conceptual confusion on one side or the other. 3 Constitutional capitalism accomplishes this by using insights of the evolutionary approach to solve problems of institutional design while using insights of the constructivist approach to solve problems of moral justification. In this way, constitutional capitalism seeks to avoid the weaknesses characteristic of each of those two traditionally rival views. The weakness of evolutionary rationalism lies in providing secure moral foundations; that of constructivist rationalism lies in addressing questions of feasibility. 4 “Illiberal Libertarians: Why Libertarianism is Not a Liberal View” [henceforth, “IL”] P&PA, 30/2 (Spring 2001), 105-151. See also Freeman’s Rawls (Routledge, 2007) (jt: specify page numbers using research packet labeled “Critiques of Libertarianism”). 5 Freeman, Rawls (Routledge, 2007), 51. 6 By “realize” here, I do not necessarily mean actually bring about. Instead, a regime “realizes” certain values when its institutions are crafted to embody that regime’s aspirations. So institutional realization, in this sense, is a matter of moral evaluation rather than of practical feasibility. 7 Freeman Rawls, 394. 8 Rawls, 55, emphasis in Freeman. (Freeman cites Political Liberalism p. 293.) 9 [jt: get citation to Rawls’s earliest use of the phrase “fully adequate basic scheme”..]. 10 Freeman writes: “ Rawls says that since questions of social and economic inequality are ‘open to wide differences of reasonable opinion’ [PL, 229] and it is often difficult to determine if social and economic institutions meet requirements of distributive justice, it is advisable that principles of justice regulating economic justice not be included among constitutional essentials and made part of the political constitution. Questions of social and economic inequality…are best left to ordinary democratic legislative determination and should not rise to the level of a constitutional dispute subject to judicial review.” Freeman continues: “By contrast, a question of whether the basic liberties are being denied ‘is more or less visible on the face of the constitutional arrangements and how these can be seen to work in practice’ [PL, 229]; it is therefore appropriate that disputes over the denial of basic liberties be constitutional issues which may be subject to judicial review” (Rawls, 394). 11 Rawls, 52. 12 [JT: get citations to libertarian literature on all these points. Also citations to Freeman’s own formulations in “IL”.] 13 Rawls, 395. 14 Freeman, Rawls at 395. [[get original and earliest citation in Rawls]].
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15 [[JT, select best quotation from Freeman’s “IL”, esp on pages 147-151]]. 16 Freeman, Rawls, 51. 17 Readers for the Brown workshop: I am especially eager to develop this part of my argument. Any suggestions or help would be much appreciated. 18 Freeman, Rawls, 57 (emphasis mine). Also, “Unregulated economic liberties then render practically impossible many persons’ adequate development of their moral powers, and therewith freedom and equality and their having fair opportunities to pursue a reasonable conception of the good. This is the underlying message in Rawls’s explicit rejection of basic economic liberties” 58 (emphasis mine). 19 JT: note that you have a couple good written paragraphs to fill in the rationale for the constit cap view of economic liberty—either to be plugged in here or later in this chapter, when outlining the empirical dispute about whether “government failure” and democratic corruption or market failure was a greater danger, from viewed from the epochal, advocacy level of political theory. Good stuff in margins re public choice dangers to political autonomy if economic decision-making power is placed in hands of elected officials, ---partly explains why classical libs see internal connections between economic liberties and civl and political ones---entwined..... [see document marked “Freeman/Rawls Critique… workshop of 6 June ‘08]. 20 Freeman, Rawls, 58. [[JT: I’m not certain of Freeman’s meaning: sometimes Sam describes libertarianism as asserting that economic liberties are absolutes or more basic than the other liberties; other places, as in the passage just quoted, he describes libertarianism as asserting the economic freedoms are equally basic with those other liberties. These seem to me very different claims (for example, the former might allow people selling themselves into slavery but the latter presumably would not). But Freeman seems to treat them as equivalent. I don’t understand… 21 OR MORE PRECISELY : However, and equally, an implication of the claim that economic liberties should not be treated as basic is that it immediately places democratically elected officials in a position in which they must craft laws and regulations that have a decisive effect on the prospects of factions, groups and individuals who must compete with each other on the specific terms those officials choose to enact. 22 By “capitalist” here I simply refer to regimes that allow for the private ownership of productive property. Welfare-state liberalism and property-owning democracy are usually described as capitalist regimes in this sense. Such regimes have been been a primary focus of public choice analyses. [there is an enormous literature here. Perhaps cite only the introductory text by Gordon Tullock Government Failure. Then give fuller citations in my chapt 6 discussion of these issues?] 23 [[jt: redraft this sentence: as written it borrows from locution of a sentence that Jay Brennan wrote in an early draft of what became “Rawls’s Paradox.”]] 24 [[jt: need to clean this up: a person who “turtles” can still be responsible to philosophy---indeed, responsibility to philosophy often may positively require such turtling. So I am referring here to a broader form of responsibility, one that asks us to connect 1) our roles as philosophers of liberalism to 2) our roles as scholars to whom people in liberal societies look for normative guidance as they seek to navigate the particular complexities of their social worlds.]]
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25 Advocates of social democracy sometimes suggest that the simple observation about the “non-naturalness” of social distributions somehow constitutes a critique of the classical liberal advocacy of limited government. [my bizarre conversation with Josh Cohen to this effect; unfortunate quotations to that effect by Cass Sunstein in The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever---refers to “the (ludicrous) idea that freedom comes from an absence of government”, and suggests that such an idea supports classical liberal jurisprudence, which he describes as “confused, self-serving, and even incoherent thinking” p. 16,also at 4, and much more of this ilk---all of which Sunstein leaves in even though he later correctly quotes Hayek as denying that classical liberalism relies on any such claim of “naturalness”; also, similarly unfortunate quotations from that Stephen Holmes book—also perhaps reference comment by Holmes in his preface about how he developed his argument while taking morning walks with Sunstein. If they were seriously interested in gaining a sympathetic understanding of the classical liberal rationale, perhaps they should have invited Richard Epstein along??]. 26 “Utopophobia” is a term coined by David Estlund. For discussion, citations (and for an explanation of that spelling!), see below. 27 Public choice. For a good intro to these topics, see Gordon Tullock Government Failure: A Primer on Public Choice….. 28 Still, however complex and nuanced one’s theory, when making evaluations or recommendation one must always consider the likelihood of realizing ones ideal in probabilistic terms. 29 Most thinkers in the liberal tradition have accepted this broad based approach to political theorizing. John Stuart Mill’s defense of legislative liberalism, for example, includes (nuanced discussion of practical concerns such as..or how various policies for the poor might tend to affect population levels. So too, when Green advocates x, his carefully considers whether….[practical effects of policies]. and John Dewey. We see this same broad based understanding of the responsibilitie of political theorists in the writings of thinkers on the constitutional liberal side. Hayek develops an account of market processes that makes him optimistic that market-based society can best provide for the needs of citizens, but he is also concerned about what happens when markets do not work as ideally imagined and so builds an advocacy of a state-based safety net into his theory. Mises/spencer/ unintended consequences…. 30 I am indepted to Carlos Ormachea for first focusing my attention on this idea of identification, and especially, to David Estlund for several illuminating discussions of this idea. [[In my own opinion: If Rawlsian liberalism deserves to be called “high liberalism”, as Samuel Freeman suggests, I believe the grounds to justify such a label should be found here in this methodological development (rather than in any substantive proposal about justice developed by Rawls). ]] 31 Rawls writes, “The problem here is that the limits of the possible are not given by the actual, for we can to a greater or lesser extent change political and social institutions and much else.” He continues, “Hence we have to rely on conjecture and speculation, arguing
26
as best we can that the social world we envision is feasible and might actually exist, if not now then at some future time under happier circumstances.” Law of Peoples, p. 12. 32 [[jt: this is a loose description. Tighten it up exegetically via Rawls’s exact listing of his assumptions in part IV of Justice as Fairness.]] 33 quoted in Kymlicka Intro to Pol: check original for surrounding text, and get citation. 34 Kymlicka, Introduction to… p.86. Kymlicka, however, is not shy about telling us what institutions he thinks modern liberal justice requires: “While it is difficult to know what Dworkin’s theory will mean in practice, it seems certain that liberalism’s institutional commitments have not kept pace with its theoretical commitments.” Kymlicka appears to be offering an evaluation of actual liberal societies but does not say why he thinks this particular evaluation is appropriate. Interestingly, he does not seem concerned that any of his readership might be skeptical of his evaluation. Indeed, again without explanation, Kymlicka continues: “Quite radical governmental policies might be required to eliminate those entrenched hierarchies---e.g. nationalizing wealth, affirmative action, worker self-ownership, payment to homemakers, public health care, free university education, etc.” 86. 35 Kymlicka 89. 36 Rational Choice and Moral Agency: (183). At a workshop on this manuscript at the University of Arizona, Kevin Vallier suggested to me that Schmidtz’s resistance to ideal theorizing was a result of Schmidtz’s broadly consequentialist approach to questions of political morality. After the workshop, Vallier sent me an electronic message on this topic. In that message, Vallier offered the following suggestion: “If you’re a deontologist who believes in a kind of choice situation to fix the content of justice, you’ll have to use levels and ideal theory – if you don’t, you can’t get a determinate choice scenario. But not if you’re a consequentialist.” I do not agree with Vallier on this point, but I found his suggestion interesting and fecund. 37 P. 260. Brennan/Pettit emphasize the importance of attending to incentives-compatibility concerns when assessing institutions. [[ BUT, JT: in places, they could be read a simply reminding us that, after the identificatory task, when it comes to the very different project of making institutional recommendations for some actual society, we should consider compliance issues. Their thesis seems ambiguous on the central point. Not sure how to handle this exegetically.]] 38 Or something like: My idea is to gather up some of the best work done in the classical liberal tradition, push it out into the cold deep waters of ideal theory, and see what bits of are able to float. From those materials, I will begin to build constitutional capitalism. 39 “Utopophobia” draft of 10/1/07, some parts of which Estlund notes are drawn from his book Democratic Authority: A Philosophical Framework. Get original citations to that book, or to “Utopophobia” ms., as appropriate. 40 According to Rawls, “…political philosophy is realistically utopian when it extends what are ordinarily thought to be the limits of practical political possibility and, in doing so, reconciles us to our political and social condition” (Law of Peoples, 11). 41 “Utopophobia”, p.2. 42 p. 3. Acccording to Estlund, “There is no defect in a hopeless realistic normative theory, and so non that hopeful theories avoid to their advantage. Things are better in one way, of course, if the best theory turns out to be hopeful (non-hopeless) rather than
27
hopeless. We should be sad if people will not live up to appropriate standards, and so we are spared this sadness if the best theory is not hopeless. But this consideration is not a reason for choosing a less hopeless theory. That would simply be to adopt [sic] different, more easily satisfied moral standards simply for the reason that they are more likely to be satisfied.” 6. 43 One of the most egregious examples is to be found, unfortunately, on the back cover of Rawls’s Justice as Fairness: A Restatement. There, readers are told: “Rawls is well aware that since the publication of A Theory of Justice in 1971, American society has moved farther away from the idea of justice as fairness.” The book, which is a carefully crafted project of moral identification, gives us not a hint of how Rawls (or anybody else) could possibly reach such a conclusion. Just as bad is when followers of Rawls offer politically divisive comparisons between ideal regime types and actual societies they wish to see transformed in ways more to their own ideological liking. For example, Krouse and McPherson: “By comparison with either ideal property-owning democracy or ideal democratic socialism, American society is deeply unjust” (103). Rawls, while not mentioning America by name, claims that existing property regimes are “riddled with grave injustices” (TJ 86). Further, it is interesting in light of Rawls’s sympathy to socialism that he takes pains to remind us, again without mentioning any names, that: “Because there exists an ideal property-owning system that would be just [the mixed socialist/capitalist regime that Rawls calls property-owning democracy] does not imply that historical forms are just or even tolerable” (TJ 274). Technically, I believe, the two latter claims by Rawls are unassailable. But, equally clearly, these claims are tendentious. They work to reinforce the idea that the idea that policy divisions within America, for example, reflect irreconcilable moral divisions. On this view, the platform of the Republican Party works to make America more of a laissez-faire regime, while that of the Democratic Party works to make America enact welfare-state measures, perhaps understood as steps towards eventually transforming America into a property-owning democracy. By bolstering the suggestion that the Democratic Party is the party of justice, while the ideals of the Republican party are unjust, such comments by leading academics encourage a pinched and ungenerous view about the range of “the loyal opposition” within liberal democratic societies. This, unfortunately, will be part of Rawls’s legacy too. 44 Just to be clear, I am not suggesting that Rawls or Estlund deny any of this. They do not. After explaining why he puts aside a variety of feasibility questions in order to evaluate institutions on the level of ideal theory, Rawls adds: “This recognizes that the other questions still have to be faced” (JasF, 137). Estlund says: “There is a place for non-hopeless theory, but it is not somehow privileged. Non-hopeless theory is what we want when we want to know what we should do, in practice, given what people and institutions are actually likely to do. It is obviously an important inquiry.” While Estlund refers to realistically utopian theories as “aspirational,” he describes feasibility-oriented, non-hopeless theories as “concessive” (“Utopophobia”, 6-7). I find Estlund’s selection of these terms instructive. I hope to return to this issue later in this book. 45 Citation to Fukyuma, “Last Man in a Bottle” article.
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46 [[JT: from perspective of what I am calling political philosophy, are we identifying standards of LIBERAL justice or of HUMAN justice?? Not sure, but am sure that I don’t want to run down any rabbit trails about that right now….]] 47 [[as I refine/elucidate these distinctions, some texts I need to study are: Bruce Ackerman, “What is Neutral about Neutrality?” Ethics, 93/2 January 1983, pp. 372-390 (esp section “II. Possible Worlds”); G.A. Cohen “Facts and Principles” P&PA, 31/3 (2003); and David Miller “Political Philosophy for Earthlings” (working draft of February 29, 2008). 48 I am not saying that there can be no other reasons to engage in normative thinking about politics. A person might engage in that work for purely self-centered reasons, for example because she personally finds it fun. Or, perhaps differently, a person might engage in it because she thinks it is intrinsically valuable. If one finds normative political knowledge of the sort obtained at the level of political philosophy intrinsically valuable, however, then the sort of normative political knowledge that might be obtained at the level of public policy looks like it would be instrinsically valuable for many of the same reasons. 49 Regime-types defined at this high level of abstraction constantly threaten to overlap and share near-core characteristics with each other. In saying that there are at least four candidate regime types, I do not mean to be underestimating this problem of regime-type differentiation. I am working roughly. 50 I used to spend a lot of time thinking about appropriate pairs of labels to substitute for so-called “modern” versus so-called “classical” forms of liberalism. Among the pairs I considered were: democratic vs. capitalistic; substantive vs. formal; constructivist vs. evolutionary; legislative vs. constitutional; regulatory vs. market-based; and even high vs. low. I’m glad that I don’t think about that anymore. 51 [[Brown readers: big point: put this way, it sound as though I am saying that there is no interesting disagreement among good liberals at the level of identifying principles of justice. But there are many moral disputes among liberals about those identificatory questions (Gerry Gaus and Tom Christiano both pushed me on this at Arizona, though from opposite directions). Need to think through what I are trying to do here. One way: admit disputes but carefully sketch out a conception of social justice on which different liberal philosophers, perhaps for their own sets of reasons, can converge. Then say that, for them, the interesting disputes between them arise at the political theoretical level of political theory?? Lots of complicated problems that I might go after here. What the cleanest way to get through this and keep my argument for constitutional capitalism on track? Any suggestions here would be much appreciated.]] 52 [[jt note: exegetically, this is not quite right: he’s engaging in a reflective equilibrium test…. Don’t this makes any difference to me, but need to sharpen this so its exegetically pristine….]] 53 JasF, 137. 54 JasF, 137 (check this cite, get other similar from TJ, elsewhere). 55 I am speaking loosely for now. Nozick, for example, might be said to accept the idea of “distributive justice” at least in the limited sense that distributions that arise from just historical processes can be said to be just distributions. I shall say much more about these ideas shortly.
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56 The details of those middle class savings incentives programs, for example, must be hammered out and the details matter greatly to the life prospects of different groups of citizens. Ditto those “steeply progressive” schedules for gift and inheritance taxes. Who sets the rates? By what process are the details of exemptions to be worked out? Etc., Etc., Etc.