A (Revised) Theory of Justice

Before explaining away the apparent contradiction I need to give a brief summary of Rawls’s overall argument from A Theory of Justice. Rawls saw himself as continuing the social contract tradition found in Locke, Rousseau, and Kant, though with a higher level of sophistication and abstraction than his historical predecessors possessed. In doing so he saw the social contract as a hypothetical contract: the principles of justice are the principles we would agree to if faced with an original bargaining position subject to certain constraints. The major constraint of the original position is that we consider potential political orders while behind a veil of ignorance: that is, we can’t know our particular position in society–whether we’re rich or poor, black or white, insanely talented or disappointingly average, hardworking or in a perennial state of torpor, religious or an atheist. In doing so we get rid of features Rawls considers to be morally arbitrary while also removing personal bias: after all, there is something suspect about billionaires arguing that capital gains taxes are unjust, as there is when the impecunious argue for radical egalitarianism.

The resulting principles of justice agreed to in the original position are as follows: First, each person is to have an equal right to the most extensive basic liberties compatible with a similar scheme of liberties for others. Rawls says those basic liberties are the right to vote and hold office, liberty of conscience and freedom of thought, freedom of speech and assembly, as well as the right to hold personal (not productive) property. (A Theory of Justice, 53.) Second (and this is an incomplete summary), social and economic inequalities are to be arranged so that they are to the greatest expected benefit of the least advantaged. (Ibid., 72.) This principle requires that we think about economic inequalities by first imagining a perfect state of equality. Deviation from this perfect state of equality is justified only if the least advantaged in this new state of inequality are better off than they would be in the original state of perfect equality. As a final note, we need to recognize one more salient feature of the two principles of justice: namely, that they are in lexical order. By this Rawls means to say that “infringement of the basic equal liberties protected by the first principle cannot be justified, or compensated for, by greater social and economic advantages.” (Ibid., 54.) In other words, we can’t go about messing with people’s basic liberties in order to make those worst off in society better off, as required by the second principle. The basic liberties are fixed.

Given these two principles of justice, how can we go about marrying Rawlsian political philosophy with libertarianism? There are two ways, both of which I endorse, both of which, to be fair, face problems of their own. First, we can take a route similar to John Tomasi’s in his excellent new book Free Market Fairness, though I do diverge with him in significant ways. This approach argues that Rawls’s list of basic liberties enumerated in the first principle is lacking. What should also be included is “thick economic liberties,” which includes (by my estimation) the freedom of contract, the right to own private productive property, as well as the right to keep most of the fruits of one’s labor. If these liberties were included then–given the lexical ordering of the principles of justice–it would follow that the pursuit of the satisfaction of the second principle through setting up redistributive institutions would be greatly handicapped, for we cannot do anything that violates our now‐​present economic rights. Thus, in shifting the content of the first principle we protect economic liberties while limiting the significance and scope of redistribution.

This approach is not without problems, though. One key feature of Rawls’s understanding of the basic liberties (particularly the political ones) is that it is not sufficient that we simply have them; we also must be able to realize their “fair value.” By this, Rawls means that we must be able to meaningfully exercise these rights. As an example, it is true that I have the right to run for political office. But given that I am a poor graduate student, and given that running for office costs a great deal of money, it is probably true that I cannot exercise this right in a meaningful way–that is, the fair value of my right is not realized. One of the reasons, cites Rawls, that the fair value of rights is often not realized is due to wealth inequality: “While it may appear … that citizens’ basic rights and liberties are effectively equal … social and economic inequalities in background institutions are ordinarily so large that those with great wealth and position usually control political life and enact legislation and social policies that advance their interests.” (Justice as Fairness: A Restatement, 148. ) And he’s probably right about this: massive wealth inequalities allow some individuals to exercise their rights more effectively than others. As such, there is a tension between wealth inequality and the realization of the fair value of the basic liberties enumerated in the first principle of justice.

The problem here is that if we are to achieve fair value for everyone’s basic liberties then we will probably need to do something about massive wealth inequalities–but we can’t, because we have just included thick economic liberties as basic liberties, which would mean that we would have to violate our newfound thick economic liberties in order to reach a state of distribution that allows for the fair value of our other basic liberties to be realized. This would mean, to put it in Orwellian terms, that some basic liberties are more equal than others. And the problems don’t stop there. Can a poor person realize the fair value of their right to own private productive property (if we are to include thick economic liberties as those whose fair value must be realized)? Probably not–after all, it costs a lot to buy a factory. As such, does the inclusion of thick economic liberties coupled with the fair value criterion require us to redistribute so we can allow the fair value of our new thick economic liberties to be realized? If the answer is yes, then it seems like we would be in the peculiar position of having to violate our newfound thick economic liberties in order to, in a sense, realize them. These problems are not incorrigible, though. Two solutions come to mind: we can lexically order the basic liberties as we did the two principles of justice, or we can get rid of the fair value criterion, and only require that we protect basic liberties in a formal, less robust sense.

Here is the second way we can marry Rawls’s political philosophy with libertarianism: We can keep the basic structure of the two principles of justice the same, and simply make an economic argument. We can argue that the political order best satisfying the second principle of justice is a free market capitalistic order–that, as a matter of fact, the worst off will be best off if we let the market run its course. This would essentially result in libertarians echoing Milton Friedman’s pithy line that a rising tide raises all boats. As someone who lacks formal economic training, there is not much I can say about this type of argument. This, though, is actually one of the argument’s weaknesses: Given the incredible lack of agreement we see among professional economists, it is doubtful that we can ever be sure what economic system will indeed best satisfy the second principle of justice. Thus, there will always be indeterminacy as to whether this argument is correct or not due to its reliance on empirical facts–an indeterminacy that could (presumably) be avoided with a knock‐​down philosophical argument, as the above approach requires.

In this essay I presented two ways one can reconcile Rawls’s political philosophy with libertarianism. As someone who broadly endorses the Rawslian approach to political philosophy I also endorse the two arguments presented in this paper. In the spirit of fairness I also tried to highlight the problems both these approaches encounter. I think this is an important thing to do. There is no perfect argument, as of yet, establishing libertarianism as the best, or most just, political order. By doing exercises like this–by presenting various arguments in support of libertarianism while also being open and honest about their weaknesses–we can hopefully make philosophical progress through constructive discussion, and, at times, through trial by fire. In the end, libertarianism as a whole will be better off.