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Kevin Vallier joins us to talk about his Arguments for Liberty chapter on the ethical system of John Rawls. Does Rawls have value for libertarians?

Aaron Ross Powell
Director and Editor
Trevor Burrus
Research Fellow, Constitutional Studies

Kevin Vallier is an associate professor of philosophy at Bowling Green State University. His research focuses on political philosophy, normative ethics, political economy, and philosophy of religion. Vallier is the author of Liberal Politics and Public Faith: Beyond Separation (2014) and Must Politics Be War? In Defense of Public Reason Liberalism, forthcoming from Oxford University Press.

Kevin Vallier joins us to talk about his Arguments for Liberty chapter on the ethical system of John Rawls. Does Rawls have value for libertarians?

Show Notes and Further Reading

You can read Vallier’s Arguments for Liberty chapter in full here: “A Rawlsian Case for Libertarianism

Arguments for Liberty is available here as a free .pdf and in Kindle and e‐​Book formats. It’s also available in paperback on Amazon.

This lecture on distributive justice in our guide to political philosophy is a great place to start for those new to the thought of John Rawls.



Aaron Powell: Welcome to Free Thoughts, I’m Aaron Powell.

Trevor Burrus: And I’m Trevor Burrus.

Aaron Powell: Joining us today is Kevin Vallier. He’s associate professor of philosophy at Bowling Green State University and he contributed the chapter on Rawlsianism to libertarianism.org’s book, Arguments for Liberty. Welcome to Free Thoughts, Kevin.

Kevin Vallier: Thank you for having me.

Aaron Powell: Who is John Rawls?

Kevin Vallier: For many people John Rawls is the most important political philosopher of the 20th century. [00:00:30] He is famous for a wide variety of reasons, but they all are sort of centrally concentrated on his 1971 book, A Theory of Justice. The Theory of Justice he develops there, is widely known as what’s called Justice as Fairness and Rawls basically says that our social institutions are just when they’re organized in accord with two principles. First, principle of liberty where people are owed a certain wide [00:01:00] range of personal and civil liberties, and then a second principle, which is actually two, that social and economic inequalities have to both be open to all or rather half the political powers and offices available among society have to be equally available to all and that social and economic qualities also have to work to the maximum advantage of the least advantaged.

[00:01:30] That latter part’s actually called the difference principle and it’s the principle that Rawls is most famous for. So, John Rawls is the philosopher who defended a liberal Theory of Justice, known as Justice as Fairness, which is comprised by those two and really three principles.

Trevor Burrus: If you think about, that was fairly complex, but in terms of the way people might know about him, because actually John Rawls has been referenced by politicians, but they’re not [00:02:00] usually libertarian or conservative politicians. It’s generally been interpreted to endorse something like a modern social welfare state.

Kevin Vallier: The interesting thing about that is how little influence Rawls has among politicians. He’s a liberal egalitarian in the sense that he’s a big believer in the redistribution of wealth, extensive social insurance and even at the times, public ownership of some of the means of production. Despite his liberalism [00:02:30] being extremely left leaning, he has the smallest fraction of influence in comparison to figures like Marx or even a variety of 20th century Marxist or post modern intellectuals. It’s kind of surprising. I think it has to do with the density of his work.

Trevor Burrus: That could be it. I definitely, I’ve heard him reference more in a popular sense. I think, part of that, as I said, just it’s assumed, which is why your chapter is so interesting in a book, [00:03:00] about arguments for liberty, but it’s sort of assumed that he is the philosopher that justifies the kind of situation most western democracies have, which is some amount of freedom and civil liberties but a pretty robust welfare state. So, somewhere between Marxism and pure capitalism.

Aaron Powell: Social democracy.

Kevin Vallier: It’s interesting that. When with Theory of Justice came out a lot of people did sort of think of it that way and in his later restatement of his position in Justice [00:03:30] as Fairness and restatement he actually says, more clearly than in Theory of Justice, is that the welfare state is actually unjust. The welfare state’s unjust because it doesn’t correct for inequalities in the holdings of wealth and capital, that it can create a permanent underclass of people who think that they’re living off of other people and that, in fact, the government needs to be even more involved, it needs to redistribute Capital Holdings widely to many people.

[00:04:00] This is a system in what’s known as property owning democracy, so it adds that capital dispersing and redistributing function to the welfare state. He was even open to liberal socialism, which would add to those two things. Modest public ownership of the means of production. So, actually Rawls is quite left wing in his economic theory, which makes this chapter even more surprising, I think.

Aaron Powell: Brawls, was he, when he wrote Theory of Justice in 1971, you said, what [00:04:30] was he responding to in the field of political philosophy, like we often hear that he kind of revitalized political philosophy, there was more [inaudible 00:04:40] before he showed up. What did the field look like and what’s he responding to a particular thing happening in it?

Kevin Vallier: I would say there’s a couple of things. First and, sorry, this is the general story that’s told. In the 20s and 30s Anglo‐​American philosophy began to be very influenced [00:05:00] by logical positivism and on this view the only sort of meaningful and interesting important philosophical questions had to be, in some way, given empirically verifiable or falsifiable answers. As a result of that general attitude, the whole field of ethics and political philosophy contracted dramatically, because normative claims don’t seem like they’re subject to empirical verification. [00:05:30] How do you empirically verify that murder is wrong?

For several decades, at least within philosophy departments, political philosophy went into hibernation and while there are a number of people rioting in the 50s and 60s that were trying to revive it, Rawls is remembered as the person who did the most to sort of bring it back, by offering a kind of systematic and careful and clear approach to these issues. [00:06:00] He’s seen as reviving political philosophy. It was one of a number of figures, but he sort of went from being first among equals to Pope, I suppose.

Trevor Burrus: You mentioned the two principles of justice, which typically Rawls is, he’s very long winded, he tries to be very clear, but it is somewhat of a difficult read, but in those two principles are usually not actually what he is most remembered for. I mean, the difference principle, but it’s usually the process that he uses to think of these, [00:06:30] quote unquote, think of these two principles, which is known as the veil of ignorance. What is the veil of ignorance?

Kevin Vallier: I’ll speak to that, though I think I should add one more thing in response to your last question, which is that Rawls is also understood as responding to utilitarianism and by providing a rejection of utilitarianism and utilitarian approaches to politics. So, that’s important, I think, for listeners to know, but to your other question.

[00:07:00] What Rawls wants to do to … He wants to try to figure out what the true principles of justice are and the way that he proposes to do this is by developing a kind of social contract procedure on which people under certain idealized conditions will choose particular principles of justice and if you get the idealization right, if that idealization represents certain moral commitments that we have, then the [00:07:30] choice that’s made under those conditions will actually uncover what the correct principles of justice are, the later he would say that the principles that are most reasonable for us.

The veil of ignorance is a thought experiment, which is intended to try to help us figure out what the right principles of justice are, given our deeply held considered convictions about moral and political matters. What the veil [00:08:00] of ignorance does is, it asks people to consider what principles of justice they would choose, abstracted from a wide array of contingent facts about their society and about themselves. So, for instance, you’re too abstract away from your race, your gender, your class, your religion or philosophy of life. The country that you live in, its level of economic development, your social position broadly, [00:08:30] your own history, even your own natural talents.

And under those conditions you’re supposed to be making fair and rational choices or rational and reasonable choices because you don’t have appeal to any factors that would unfairly or irrationally bias your opinion. Choice under those conditions would be fair and they’re most likely to arrive at fair principles, principles that will be the correct principles of justice. [00:09:00] That’s what he’s trying to do with the veil of ignorance, behind the veil of ignorance were ignorant of all these factors that would bias us and when we are ignorant of the factors that would bias us, the choice that we would make will yield what justice requires.

Aaron Powell: When he’s looking for these principles of justice, are these kind of free floating, like justice is something that exists out there in the universe in some sort of platonic form or is this justice as it is for us as embodied [00:09:30] beings, because it seems like the … All of those things that he’s asking us to strip away are the things that make us human, they’re like who we are. We’re choosing a justice that is detached from the very things that matter to us most.

Kevin Vallier: This is actually a pretty interesting question because Rawls very much … And it becomes very clear later in his [00:10:00] work, after a Theory of Justice and it’s actually clear before, in his articles before Theory of Justice, that he thinks that the enterprise of the Theory of Justice is about making sense of the convictions of our society broadly and that we’re trying to choose principles of justice, not for purely abstract people, but for the societies in which we live.

He thinks it’s very important that the correct principles of justice be stable, under free conditions, at least under certain ideals [00:10:30] or favorable conditions. He’s not interested in just identifying some sort of mind independently true principles of justice, if Rawls even believes there was such a thing. He’s interested in choice of principles of justice for us. Then that creates a very important question, which is why exactly did he choose such an abstracting approach?

He thinks that our self‐​understanding, as thinking of justice as being impartial, well, or rather [00:11:00] based on reciprocity, as he would put it, means that we already think about justice as attracting away from these factors about ourselves. I think in many cases he was right. I mean, right? We don’t think that the principles of justice should depend on your race or your gender your level of wealth, but to extract away say, from your natural talents and your religion, that’s going sort of too [00:11:30] far, but I do think most people would agree that at least some of the things that were ignorant up behind avail of ignorance aren’t taking us too far away from real people and their real self‐​understanding.

Trevor Burrus: I sometimes describe the elevator pitch of Rawls’s veil of ignorance processes an attempt to try and make traits that are irrelevant to justice not matter. Then the real question is what traits are irrelevant to justice, but as you pointed out, if you said … I [00:12:00] always say that, okay, imagine you’re going to have a society where there will be people with black on the right side of their face and white on the left side of their face and then the flip side by the Star Trek episode. You don’t know if you’re going to have black on the right or left side of your face, but you still have to design the society, so you presumably will not design it to hurt just one of those groups of people, and a way to do that is to keep people from knowing what they’re going to be when they enter into the society.

This is, I think, a huge part of the appeal. [00:12:30] There’s something really intuitively appealing about Rawls and it’s a really good testament to the fact that if you’re a philosopher and you come up with like a really memorable mind game that makes intuitive sense, it can get you a long way in your career.

Kevin Vallier: Well, that’s certainly true. I think is one of the attractions of Rawls and though it’s been also endlessly controversial and it’s also been something that many people have found repellent. [00:13:00] And I don’t use that word lightly. I mean, some people really, really hate Rawls. So, whatever reason, his work tends to inspire very strong reactions, both people who find it intuitive and people who don’t.

Trevor Burrus: We [inaudible 00:13:13] go to the difference principle, sort of get down into the libertarian possibilities behind Rawls, but the difference principles make part of this.

Kevin Vallier: Let me just get the right formulation on the table. The difference principle was that social [00:13:30] and economic equalities, rather inequalities. Social and economic inequalities are to be to the greatest benefit of the least advantaged members of society.

Trevor Burrus: This is not purely egalitarian, you’re allowed to be unequal, yet it has to be an inequality that is to the greatest advantage of the least well off. Just kind of, I think, actually, I think ask you a question and then help illustrate this for our listeners. You do, at one point in your chapter, say that you’re not going to talk about whether or not [00:14:00] capitalism itself can satisfy the difference principle because that would be one way of interpreting it and we say, “Hey, having unequal Steve Jobs, it really helps out poor people, it helps out people with the fact that he’s so rich to have an iPhone in their pocket and they can become Uber drivers all of a sudden.” That’s an inequality that is allowed because it helps the least off, but you say you’re not going to do that, that process.

Kevin Vallier: Yes. There’s a couple of reasons. One is that a lot of libertarianism have already pursued the argument, they [00:14:30] say capitalism works to the greatest benefit for the least advantaged. Another reason, though, is that the classic liberal philosophers who have tried to engage Rawls’s thought in order to defend the principles of a free society have tended not to go that route for a number of different reasons. One is that the difference principle is not Rawls’s first principle.

The liberty principle is the first principle and the liberty principle is what Rawls said [00:15:00] is lexically prior to this to the difference principle. That means that satisfying has to come first in cases of conflict and it might be the case, for instance, there’s a more promising Rawlsian route to the principles of free society, given the priority of liberty and if, for instance, economic liberties turn out to be part of that principle, that’s going to give a sort of more powerful defense.

There’s some other reasons too, but I think for listeners that’s, I think, one reason [00:15:30] that you don’t want to just say, “Oh, well, Capitalism helps the difference principle.” Because we’ve got this liberty principle to explore. I think that’s one kind of consideration. It also goes to the idea that this is a fundamentally non‐​consequentialist theory. It’s what we call a deontological theory, where the justice of outcomes [inaudible 00:15:52], it depends solely on their consequences. If you really want to work out a kind of non‐​consequential Rawlsian approach to, [00:16:00] say, economic justice, you don’t want to just appeal to whatever works to the greatest benefit, to the least advantaged, you want to appeal to all the different features of that Theory of Justice in order to defend a free society.

Aaron Powell: I have maybe a big question, because I think it draws in a lot of what we’ve discussed. With the difference principle there’s a question there of what it is that we’re maximizing, when we’re maximizing the minimum? [00:16:30] Are we talking about material wealth, are we talking about subjective satisfaction and so on, but the reason I’m thinking about that is because when you say so we would all … The [inaudible 00:16:46] the veil of ignorance would’ve abstracted away all of these kind of arbitrary traits or contingent traits and these are the principles that we would agree to, that we would agree to a system where you could [00:17:00] have inequalities, as long as those inequalities benefited ultimately the people at the bottom, but we see that really hard core egalitarian state, that people very concerned about say income inequality, even if you make the argument that like look, “These people being very wealthy. They created a lot of jobs and they did enormous benefits for the poor.”

On the policy side we’ll make the argument that, “Yes, the people who own Wal‐​Mart are extraordinarily wealthy, [00:17:30] but Wal‐​Mart has created so much good in terms of lower prices for food and so on and so forth for so many people.” But they say, “No, there’s just something inherently bad about the very fact of inequality itself.” But it seems like Rawls would say that kind of attitude is just not allowed behind the veil of ignorance or it’s not the kind of thing that people would agree to. What are we maximizing? Do these kind of [00:18:00] psychological traits get abstracted away, like the very fact that we just were envious people maybe or we don’t like seeing others with more than us and then how do we tease out what is reasonable agreement or not reasonable, like how do we say, “If you were reasonable you’d agree to this, so the fact that you don’t agree to this means you’re not reasonable.”

Kevin Vallier: The reasonableness issue is pretty vexed. I think we’ll [00:18:30] start with the somewhat easier of those two difficult questions. Having to do with certain kinds of psychological dispositions and what role do those play in the veil of ignorance. The answers, essentially we’re trying to do is we’re not building … People can appeal to the ordinary facts of economics and psychology, something Rawls says, but that the choosers behind the veil of ignorance aren’t thought to have any fundamental desires of that sort.

They’re abstracted away [00:19:00] from pretty much any kind of [sectarian 00:19:04] or abnormal or unusual or even corrupt desire. What they’re essentially doing, they’re a philosophical fiction intended to give us an idea of a fair and rational choice of principles. Now, features about how to address our psychology and how justice fits in with our psychology and to what extents NV matters, Rawls actually talks about this in the Theory of Justice, but it comes [00:19:30] towards the last third of the book, which very few people read and a lot of it has to do with the way in which Justice as Fairness is supposed to mesh with our moral psychology.

So, the choosers themselves are not going to be subject to these considerations, but Rawls does address those kinds of concerns and he does find that there are certain ways of being preoccupied with equality that are unhealthy or somehow inappropriate to shaping society. [00:20:00] As far as reasonableness goes, this is pretty complicated issue because it becomes a huge point of contention in his next big work, a Political Liberalism, but the basic idea of what’s going on in the earlier book is that you’re using the term reasonable to try to refer to something that goes beyond just mere rational choice.

The choosers behind the veil of ignorance are meant to model a reasonable [00:20:30] and rational choice and it’s a reasonable choice because it’s fair and reciprocal. The idea is that the reasonable goes beyond mere sort of practical rationality and allows us to say that certain kinds of rational bargains would be morally inappropriate or morally problematic, say one that was based on my extracting a benefit from you just based on the threat that I make to you about not cooperating with you or something along those lines.

Trevor Burrus: You discuss, [00:21:00] we kind of alluded to it a little bit, but you discussed two other theorists who are in the classical liberal libertarian camp broadly speaking, who kind of write in the tradition of Rawls, but adapted or not adapted, interpreted in such a way or argue in such a way that certain classical liberal or libertarian principles would be acceptable. The first one is John Tomasi, who is a philosopher at Brown University and he, in his theory [00:21:30] of this, focus is more, as you pointed out, on the first principle, correct?

Kevin Vallier: That’s right. Yeah. I’ll also tell you. I also talk to the second principle, but I think the main innovation in John’s approach, Tomasi’s approach to Rawls is in the development of the first principle in a very different direction from Rawls.

Trevor Burrus: What does he argue?

Kevin Vallier: Tomasi [00:22:00] thinks of Rawls as one of a group of theorists that he refers to following [Sam Freeman 00:22:08], who’s a philosopher, an ex major expositor of Rawls, calls high liberalism. The high liberal view is a kind of left wing egalitarian liberalism that draws a really sharp distinction between traditional liberal liberties, like civil liberties, freedom of speech or religion, [00:22:30] procedural liberties like the right to fair trial, political liberties like the right about … On the one hand and then the classic liberal economic liberties on the other.

I think the first set of civil liberties should be protected at that sort of highest moral and constitutional level and the other liberties, these traditional classical liberal liberties, like freedom of contract, should be basically discarded or dramatically curtailed. Tomasi says that this is a kind of, what he calls [00:23:00] economic exceptionalism, and all the same arguments that would lead Rawls in to prioritize these personal and civil liberties. Applied with equal force or at least with nearly as much force to the case for the traditional classical liberal liberties. So, he’s arguing against economic exceptionalism in order to sort of come up with his own alternative to Justice as Fairness or free market fairness.

Trevor Burrus: [00:23:30] That means that if you’re respecting the equal liberties principle of the liberties principle of the first principle of justice, that means you include things like the right to earn a living and the right to contract and then you get a … Even if you run through the rest of the principles of justice, you get something that looks pretty classical liberal at the end of that.

Kevin Vallier: That’s right. In fact, it’s not even clear how much more room there is for other, the other principals to function, which is something that some people have criticized Tomasi for because if you have [00:24:00] these strong classical liberal liberties it’s not clear what the rest of social justice can do. Here’s a sort of way to make it a little more nuanced view. Rawls also actually acknowledges that there are two basic liberties that … Or economic liberties and that are absolutely fundamental in the same level as freedom of speech.

The first one is the right to own personal property, [00:24:30] like family heirlooms and clothes and stuff like that. The second is a right to freedom of occupation. The problem with command economy socialism for Rawls is that the government tells you what job you have to have. A really good question that Tomasi is able to pick up on is, “Why only those two? Why does Rawls restrict the basic liberties to those two?” Because those are fundamental liberties. They must be protected for a society to be just legitimate and stable among real people. [00:25:00] So, John gives this example, like you imagine a woman who say, is a small business owner, [name is 00:25:10] Pup In The Tub and she’s responsible for basically cleaning, grooming, dog grooming.

To develop her own life in her own way, her own projects, her own morality, that she ought to have not just the liberty [00:25:30] of where to work, but the liberty to own a small business and operate it according to her own wishes, within certain kinds of constraints. The way I like to put this point in my own work is that if you think there’s a right to choose where work that implies, a right to go to into business for yourself. Imagine that Amy ran the Pup In The Tub out of her home, which is her personal property. She’s using her home as capital and so it seems like if you acknowledge these two liberties you should acknowledge at least [00:26:00] a restricted right to own capital, which is how you get the case for capitalism off the ground.

What Tomasi wants to say wants to say is, “Look, you just can’t divide up the case for liberties and get all the egalitarian liberal liberties you want, but not get the classical liberal liberties.” This sort of case of Amy’s Pup At The Tub is supposed to help eliminate them.

Aaron Powell: Why does Rawls only privilege those particular economic liberties? Why is he less concerned about the others? [00:26:30] The kind of cute psychologizing answer might be that the ones that he seems to think are important are the ones that is a tenured professor at Harvard matter to him, like he’s not interested in starting his own small business and probably neither are many of his friends, but he needs to be able to own his books and he wants to be able to choose what he writes about, but is there a more philosophical reason for not accepting this wider range of economic liberties?

Kevin Vallier: [00:27:00] I thought a lot about this. Rawls just doesn’t give us much help on that question at all, far less than he should have. My best guess is that when he’s [writing 00:27:14] at the time, those classical liberal overseas are extremely controversial and he’s starting this project, thinking about this project in the late 40s, early 50s. It’s developing throughout the 60s in a time where classical liberalism is in a bad way. [00:27:30] I think he’s thinking that those liberties are just ones that are not part of our shared self‐​understanding in the way that freedom of occupation is, but it still doesn’t make sense.

However popular socialism, full blown socialism was and the liberal democratic countries never abrogated the fundamental right on private capital, they nationalized some major industries, but they never destroyed small businesses. [00:28:00] It’s very peculiar that he didn’t have almost anything to say at all. It’s incredible really. So, I’m at a loss. I just don’t know what to say. I know that for the harder core classical liberal liberties, like really strong freedom of contract, there’s going to be standard worries that will people recognize more from Marx about those being sort of fake liberties, that are liberties of the rich to oppress [00:28:30] the poor, but if you sort of pare it down a bit, you don’t allow say freedom of contract to allow businessmen to pay someone anything they want to pay them, no matter how little, or you put a limit on saying a pharmaceutical company can’t charge a million dollars for lifesaving.

Just suppose you just restricted freedom of contract just a bit to get rid of some of these seemingly nastier cases. Why not endorse that? Why not endorse a modified, sort of limited freedom of contract? I don’t know the answer. [00:29:00] I don’t know the answer.

Trevor Burrus: I’ve wondered the same thing, and the best I’ve come up with is something similar to what you just said. Moving out of a Theory of Justice, and you mentioned this a little bit previously that Rawls ideas started changing pretty quickly after a Theory of Justice, that he was sort of working on a different, but related project that came out in a book called Political Liberalism, which I think was published in the early [00:29:30] 90s, if I remember [inaudible 00:29:31]

Kevin Vallier: That’s right. Most of the materials getting out there in the 80s, but yeah. The first edition is a 1993 [inaudible 00:29:41].

Trevor Burrus: What is his new task there? I guess it’s related to his previous task, but how is he thinking about it now, in that book?

Kevin Vallier: This is an interesting question on which there’s been a lot of recent scholarship. It’s complex and I will try to keep it as simple as I can. [00:30:00] Rawls thought a very important thing for a conception of justice to do, like his two principles would be that it could keep a society under favorable conditions, stable in a moral way. For instance, a society could be stable in an immoral way if you just have a dictator that’s just really good at crushing opposition and dissent, but Rawls wanted a liberal society to be one where people could affirm a conception of justice they lived under [00:30:30] after sustained moral reflection on those institutions.

They want to see them as things that they can endorse and comply with freely. It was very important for Rawls for a conception of justice to be stable, but in a Theory of Justice the account of stability he gives involves embracing certain kinds of goods and excellences and sort of ignoring or downplaying others. Rawls eventually came to realize that in his own understanding [00:31:00] of stable society, what he called a well‐​ordered society, there would be a dynamic that would lead it to unwrap and destabilize on its own, and this is what he called the fact of reasonable pluralism.

This is basically the fact that reasonable people can fundamentally disagree about ultimate religious, moral and political matters. They can disagree about the conception of the good life in particular. They would end up with different, what Rawls called reasonable comprehensive doctrines, and [00:31:30] this meant that there was not going to be any one story that you could tell about why people had a particular moral reason to be just or to go along with principles of justice.

What he tries to do is reconstruct his model of a well ordered society to take the form of what he called an overlapping consensus. You would take a conception of justice, like the two principles and say, “Okay, well as long as everybody from their own comprehensive doctrine can accept the two principles, [00:32:00] then a society could be stable in the right way or could be stable for the right reasons.” Basically, what he’s doing is saying, “I want a just society to be one that’s stable for moral reasons, but people are going to come to freely disagree about morality and that means we have to see if Justice as Fairness can be justified to multiple reasonable points of view.” Out of that problem the project of Political Liberalism [00:32:30] grows.

Trevor Burrus: Is this different than … Sorry. We talk a lot today about conservatives and democrats and how different their world view is and maybe they’re not even agreeing on the fundamental things that government should be doing and what it’s for and it’s becoming a big problem, because maybe there’s not an overlapping consensus, is it something like that or am I dumbing it down a little bit too much?

Kevin Vallier: No, you’re not dumbing it down. [00:33:00] A lot of these questions are complex ones, because Rawls just … His views have a lot of moving parts.

Trevor Burrus: But it’s something like that, when people‐

Kevin Vallier: It’s not really about political ideology because, at least until very late in Rawls’s career, he just didn’t think there was going to be that much reasonable disagreement about justice, which is usually what conservatives and libertarians and progressives disagree about. He was thinking more about conceptions of the good and he’s [00:33:30] particularly thinking about religious people and he’s thinking about people with secular moral doctrines, like utilitarians or [inaudible 00:33:37].

He’s trying to show how his conception of justice, and maybe some other related ones, can be accepted by different groups who have different understandings of the good life. That’s really the kind of pluralism or reasonable pluralism he’s worried about addressing. Late he starts to see that reasonable people can disagree about justice, but [00:34:00] he … In my opinion, someone notoriously says that libertarianism is not a reasonable conception of justice. He’s bending over backwards to accommodate religious people, including … I mean, he says every major religions ought to be able to be politically liberal, but not libertarianism.

Trevor Burrus: That’s pretty amazing‐

Kevin Vallier: He’s got Nozick down the hall, remember, right? They’re both there at the same time. He’s just down the hall [00:34:30] and this guy is beyond the pale for Rawls.

Aaron Powell: That comes back to that question I asked earlier about reasonable disagreement and reasonable doctrines, because it seems like it’s almost either circular or maybe stacking the deck to say like, “Well, we’re going to figure out all of these reasonable people, what they would agree on is justice, are the principles of justice that we’re going to use, but at [00:35:00] the same time the way that we kind of judge whether they’re reasonable in the first place is what sorts of principles they endorse.” So, presumably Nozick down the hall is an irrational person because his principles and his core ideas are themselves irrational or just nuts. Is it circular? Is there a way to meaningfully get to figuring out which people are rational [00:35:30] or reasonable and which ones aren’t, without picking your end goal and then seeing which ones line up with it first?

Kevin Vallier: Literally, if you read the text, Rawls’s definition of the reasonable is circular, like he defines reasonable people in terms of affirming reasonable doctrines and reasonable doctrines just wanted to be affirmed by reasonable people. It’s very hard to sort through exactly what the reasonable is and what one can do with [00:36:00] it. Let’s suppose we’re trying to give our best reconstruction of Rawls. I take it what a reasonable person is supposed to be is they’ve got sort of two dispositions.

One, they’re going to recognize that there’s reasonable pluralism, they recognize what Rawls called the burden of judgment. They’re going to believe that other people can disagree with them about the good and so on without being a bad will and [00:36:30] without being fundamentally confused or stupid or irrational. The other condition is that you be prepared to propose reciprocal terms of cooperation, like the rules that go for you will go for me and vice versa. If you hand those two features, that you believe in reasonable pluralism and you’re prepared to offer reciprocal terms of cooperation, then you’re reasonable.

Aaron Powell: Then why wouldn’t Nozick be reasonable, except for maybe [00:37:00] Rawls just thought he used an unreasonable amount of italics in his writing or something, but those things would seem to apply to Nozick.

Kevin Vallier: It’s weird. There’s this one section in Political Liberalism about it and it has to do with the fact that he thinks that Libertarians see the state like a corporation and that our self‐​understanding of government is that it is a public entity that is supposed to represent all of [00:37:30] society as a collective whole. That’s the problem with Nozick’s views, it sees the state basically as sort of fiduciary institution.

However, suppose that we’re a fair criticism of Nozick and whether it is, I think is … Well, it’s complicated, but there are plenty of libertarian views on which that just isn’t true. I mean, it’s just not true of Hyatt, for instance. He doesn’t see the state as [00:38:00] just the sort of another private corporation. J.J. [Cannon 00:38:06] isn’t going to see it that way, Milton Friedman is not going to see it that way. Nozick doesn’t say, “Give us a theory of democracy.” Or anything like that, but generally most classical liberals have been some kind of small D, democrat, despite wanting very strong constitutional protections of liberties, but Rawls wanted strong constitutional protections of liberties.

I think that if you have a sort of constitutionalists [00:38:30] libertarianism, I don’t think Rawls can rule you out as having unreasonable conception of justice. Certainly, he can’t rule out John Tomasi’s Free Market Fairness, which is quite libertarian, as being unreasonable, because it’s just so much like his view. It would be very difficult for him to rule that out. Long story short, libertarianism in the Nozickian or Rothbardian form isn’t the only kind. Even though I don’t think Rawls’s criticism [00:39:00] of Nozick is successful, it just hasn’t touched plenty of versions of libertarianism. So, it’s just not … Rawls wants utilitarianism to be reasonable, so that’s going to include like a gigantic number of libertarians.

Trevor Burrus: I kind of believe that Rawls just didn’t spend a lot of time thinking about libertarian theory. It just wasn’t the circles that he walked. He had Nozick there, but I don’t know how much they … He didn’t [00:39:30] go to the parties. I just think it wasn’t what he was really talking about. When we talk about Political Liberalism and this sort of idea of overlapping consensuses, Rawls calls it, but there’s another guy you write about in your chapter, Jerry Gauss [inaudible 00:39:46] Gauss, who’s a philosopher at Arizona, correct?

Kevin Vallier: Yes.

Trevor Burrus: He goes more, as in where John Tomasi goes for Rawls and talking about one of the things, big things he highlights is one of the rights and liberties of the people. [00:40:00] Jerry Gauss is really looking more at the kind of things that Rawls is wrestling with in Political Liberalism.

Kevin Vallier: That’s right. Tomasi is explicitly engaging Rawls in a way of developing a Rawlsian view. Gauss was working on Political Liberalism at the same time Rawls was developing it and there are certain ways in which he’s building on Rawls and he’s built on Rawls, but there’s other ways in which his project is [00:40:30] more self‐​contained. But there is an affinity in this way. There’s a question about how we are to have an ongoing system of social cooperation that preserves our understanding of persons as free and equal and treating others with respect, but it also recognizes that disagreement about fundamental moral or normative matters is inlimitable from political life.

It’s also a social contract here and that it’s trying to justify [00:41:00] a moral and political order in terms of what can be justified and acceptable to each person. There’s a lot of similarities in terms of the project. It’s a contractarian project that is grappling directly with the fact of reasonable disagreement or Gauss calls it evaluative pluralism. The project differs in a variety of respects that I explain in the chapter, but it is that being more classically [00:41:30] liberal for a couple of different reasons. One, Gauss thinks that in his kind of original position equivalent there are a lot more different kinds of disagreements that are present.

Really, in Rawls’s veil of ignorance everybody’s so abstracted that they all end up agreeing about … They all end up pretty much agreeing on all the same views. It’s not even really a bargain at all, even though it’s presented as one. [00:42:00] For Gauss, he allows just a lot more diversity and disagreement, weighting of different values and things like that. He thinks there is sort of certain fundamental liberties like Rawls does, that include some economic liberties, but he also thinks that the case for some rights that we have is that they help us to resolve disagreements that we couldn’t otherwise resolve.

For instance, one of his main arguments, contractarian arguments for right of private property, is that because people disagree so much about the good life and they disagree so much about justice, we need [00:42:30] economic and political institutions that allow us to go our own way and to live our own lives. A fundamental argument for a strong right, not a fully libertarian right, but a strong right of private property, is that it helps to economize on disagreement. For instance, the reason that socialism for Gauss can be justified to each person or what he calls publicly justified on, is that people can’t agree on which plan to appeal to, people can’t agree on what all [00:43:00] to do in their publicly owned housing complex.

Part of the case for market order and for classical liberalism is that it acknowledges and deals with disagreement in some really kind of magnificent ways that Rawlsian, egalitarian liberals seem at least largely unable to appreciate.

Trevor Burrus: Does this end up dealing with … Because it’s something that libertarians talk about a lot. I like the idea in Gauss about private [00:43:30] property, it’s good fences make good neighbors, but in a more profound sense that when you have fundamental ways that you’re constructing your life and the things that you value, it doesn’t really work to have everyone voting about that and trying to control each other’s method of deepest held values and deepest held convictions. But how does that get us to … Do you have a theory of coercion at all or about the state in Gauss, whatsoever?

Kevin Vallier: Yes. It’s interesting [00:44:00] in Rawls’s work, particularly this is explicit in Justice as Fairness restatement and it’s basically explicit in Political Liberalism. It’s entailed by two explicit things, he says. Then there’s a presumption against coercion, that if the government is going to coerce it needs a good reason. For Gauss, if the government’s going to coerce it has to show that the coercion can be justified to the people who are coerced. It turns out that’s hard to [00:44:30] do in many cases because people reasonably disagree about, not only what the state is permitted to do, but they disagree about the effects of what the state may do.

So, they’re going to disagree about all kinds of things and so many policies and approaches and constitutional forms are going to be reasonably rejectable by somebody or at least some sizable group. Because Gauss allows for a much broader range of reasonable disagreement than does Rawls, [00:45:00] there’ll be libertarian and conservative members of the public that are reasonable and that have a good reason to reject extensive forms of government. Property earning democracy and liberal socialism can’t be publicly justified because of the reasonable objections of [conservative 00:45:17] libertarians.

He doesn’t go fully libertarian because he thinks that folks on the left are going to have reasonable objections to that, but a key idea is there’s a problem with coercion, it [00:45:30] is sort of generally bad and that people have a kind of right against legal coercion and they can only be met if the laws imposed upon them can be justified to them given their own principles and values, and since so little can be justified we end up with a pretty libertarian order.

Aaron Powell: If we’re saying that the role of the market or the reason that is a classical liberal or libertarian theory ultimately is that, if the people … That one of the benefits of private property and limiting coercion [00:46:00] is that we’re not forcing upon each other those things we can’t agree on. In a sense the freedom there is kind of the default, it’s like the background, like, “Look, if we can all agree on what to do then we’re going to do nothing, which is letting people have their own property and letting them live their own lives.”

But it feels like you look around the [00:46:30] political culture today, our latest elections, the elections going on in Europe. It’s like the one thing that everyone except us principled few, at the Cato Institute, can agree on is that we should never leave anything to the market, that we may not be able to agree on what government should do, but the not having government do something is worse. Do we have to kind of agree to have … All reasonably agree [00:47:00] to have the market and freedom and classical liberalism be that kind of default option to get it off the ground?

Kevin Vallier: Yeah, this is a good question. Gauss actually has a number of different things to say about this, but I’ll just try to stick to a basic idea. Among the things that he thinks that is recognized widely and cross‐​culturally is a kind of presumption against coercion. Different people think about which policies are coercive in different ways, [00:47:30] but generally if they think the state’s going to coerce they need a pretty good reason. He thinks that that basic presumption against coercion runs really deep through humanity and so if you show that not a lot can meet that presumption.

It’s not that everybody has to endorse libertarianism, it’s just that it’s an implication of fact that they endorse a presumption against coercion. In that sense libertarianism is sort of endorsed by implication. [00:48:00] People say, “Okay, we agree on this presumption. Oh, wow, look at how much other people disagree with us. I guess we can’t meet that presumption very easily.” The idea is if you can confront people with the fact that so many of their disagreements are fundamentally reasonable ones, then they’ll get sort of drawn by matter of logical, rational consistency towards a more classically liberal position.

It’s also the case that Gauss [inaudible 00:48:25] does, it’s not about what people would agree to sort of as they are, [00:48:30] there is idealization in Gauss, though considerably less than there is in Rawls. The idea is that you’re trying to turn what’s justifiable to people based on their commitments and values and not just whether they say yes or no in a particular moment. You’re trying to base the law on their diverse reasons, but not merely based on … For the fact that people are extremely risk averse and have a sort of irrational beliefs about what would happen if the government [00:49:00] weren’t acting.

In a publicly justifiable order there are going to be lots of situations in which you say, “Yeah, I mean, most people think that this is going to be a disaster, but they don’t have any good argument for that so we can go ahead and have the policy.” We have to be wary about not idealizing too much, we have to be very careful to keep the idealization sort of close to the ground, otherwise we’re going to coerce people without a good reason, but we’re not just going to have the order, the political order, entirely the victim [00:49:30] of people’s basic irrationalities and biases.

Trevor Burrus: Can you clarify? You mentioned that with idealization and it’s mentioned in your chapter and it’s important kind of distinction in political philosophy, the ideal theory versus the non‐​ideal theory, and Gauss kind of does a little bit of both, it seems like.

Kevin Vallier: Yeah. It’s not sort of fully non‐​ideal theory in the sense that you’re just looking at power relations and how best to balance. It’s an enterprise [00:50:00] within a kind of moral theory that’s looking at what we could reasonably aspire to under certain conditions.

Trevor Burrus: In terms of defining it, is it? Because I was, when we talked about, for example, does anyone in this … Someone who’s not very philosophical, who’s listening to this might be wondering whether or not anyone is talking about the actual behavior of government agents in the actual conditions under which they behave and we say, “Well, that’s because it’s a different kind of game we’re playing.”

Kevin Vallier: For Gauss, when we are choosing [00:50:30] the terms of political life, we are able to appeal to the fact that government agents, for instance, are often going to be self‐​interested. In Rawls’s theory it’s so much closer to the ideal theory end of things that you do presume that people generally comply with the law and that government officials are generally well‐​meaning and capable. Although Rawls doesn’t really defend that assumption, but Gauss does not accept that assumption. I think that’s another reason that his view inclines [00:51:00] in a classical liberal direction, because once you’re prepared to say … Rawls thought markets failed all over the place, but there’s no role for government failure in his theory almost at all. There may be some little gaps. For Gauss they’re all on the table. Market failures, government failures and what can be justified is going to be based on our best assessment of which laws accomplished, the ends that we can agree upon, a real social scientific assessment of those possibilities.

Trevor Burrus: Of these [00:51:30] two sorts of Rawlsian classical liberal theories we talked about, Tomasi’s and Gauss’s, is there one that you prefer or think is stronger?

Kevin Vallier: Yeah. I should just say to listeners … I was one of Gauss’s students and there [inaudible 00:51:49]. I wrote my dissertation under him. So, that may be part of the reason I’m partial to the Gaussian view. Right after I finished at Arizona I was a post‐​doc [00:52:00] at Brown with Tomasi, while he was finishing up Free Market Fairness. I was influenced by John as well, but I incline towards the Gaussian view and the reason that I incline to the Gaussian view, I think maybe the main reason anyway, is this, Rawls acknowledged toward the end of his career that there was reasonable disagreement about justice.

If you allow that that runs as deep as reasonable disagreeing about good, [00:52:30] you can no more have a free, open, stable society based on a single conception of justice, then you can in a single conception of the good. So, it’s no longer possible, I think, under modern conditions, for the Catholic Church to be the dominant political force in a society because there are reasonable good people who aren’t Catholic.

In the same way we can’t have Justice as Fairness as the basis for justice because there are reasonable good people [00:53:00] who are not liberal egalitarians. I worry that the project of trying to come up with the correct conception of justice to govern our social order is hopeless in the same way that coming up with the right conception of the good is hopeless. I think that Tomasi is too much like the early Rawls and that his view succumbs to the same kinds of difficulties that lead Rawls to Political Liberalism and I think, if he’d lived longer, would have led him even away [00:53:30] from is emphasis on Justice as Fairness.

Gauss accepts that there’s a reasonable disagreeing about justice, just like there is reasonable disagreeing about the good. I think that’s a more realistic place to start doing sort of traditional political theory.

Aaron Powell: Libertarians have typically been fairly dismissive of Rawls. He certainly doesn’t have a place in the libertarian philosopher pantheon. Do you think that Rawls has [00:54:00] value for libertarians?

Kevin Vallier: Yeah. I think he has enormous value and I think he has enormous value for a couple of reasons. First, he’s a good philosopher and an important one in his own right, and libertarians who are interested in political philosophy can just learn a lot by understanding his view. Another reason he’s valuable is if you really want to understand what’s driving at least certain kinds of elite liberal egalitarian opinion, Rawls is someone to go to, to understand [00:54:30] those you disagree with.

Another reason to take Rawls very seriously is that Rawls is a liberal and libertarians, I think, are broadly liberal as well. Many of the arguments that Rawls uses on behalf of certain kinds of liberal institutions are ones that I think libertarians will find congenial where they agree with liberal egalitarians, but also they’ll see, I think, and hopefully by taking a look at the chapter that I wrote they can [00:55:00] see this, that many of the arguments that Rawls gives, he just didn’t see that they had libertarian implications. And that by studying Rawls you might find some very powerful arguments for libertarianism that you may not have otherwise been aware of, if you were dismissive of Rawls.

Aaron Powell: Thanks for listening. This episode of Free Thoughts was produced by Tess Terrible and Evan Banks. To learn more visit us at www​.lib​er​tar​i​an​ism​.org.