What's Wrong with Rawlsekianism?
Reconsidering my "liberaltarian" fusionism a decade and change later
For a number of years, I pursued the project of fusing the philosophies of F.A. Hayek and John Rawls. The ugly term for this view was “Rawlesekianism.” Way back in 2010, I wrote a draft of a chapter on Rawlsekianism for a book Brink Lindsey and I had been writing, The Free-Market Progressive, just before we left Cato. Over the past decade, I’ve drifted toward a more eclectic conception of liberalism and a neo-republican conception of liberty as non-domination. But elements of my old Rawlsekianism still appeal to me.
In that draft chapter, which has never seen the light of day, I characterize the Rawlsian element of Rawlsekianism as the “Liberalism of Respect,” the Hayekian element as the “Liberalism of Discovery,” and the fusion as the “Liberalism of progress.” (This is the progressivism our title referred to.) Here’s how I put it:
Rawls, we argue, offers a “Liberalism of Respect,” while Hayek offers a “Liberalism of Discovery.” Rawlsian liberalism is richly moral in emphasis, while Hayekian liberalism has a more pragmatic cast. However, we should not feel pressured to choose between the Liberalisms of Respect and Discovery. They are better together. The Liberalism of Discovery makes the Liberalism of Respect more useful. The Liberalism of Respect makes the Liberalism of Discovery more just. The unified Rawlsekian vision offers a powerful, morally gripping conception of social justice that captures both the inherent value and the matchless utility of freedom. We call the fusion of these liberalisms the “Liberalism of Progress.”
The Liberalism of Progress generates progress in more than one sense. The Liberalism of Respect creates ongoing progress toward “social justice,” as that term it is primarily used today—toward increasing equality of cultural, moral, political, and legal status between members of historically dominant and historically dominated groups. For its part, the Liberalism of Discovery creates ongoing progress toward the accumulation of useful knowledge, the development of technology, and rising standards of living. The key insight of the Liberalism of Progress is that the institutionalization of an ethos of liberal respect and the institutionalization of an ethos of liberal discovery are complementary and mutually reinforcing.
I still think this is pretty sweet, there’s a lot to recommend this as a conception of liberalism, and it continues to structure my thinking. But my thinking about it has changed a lot over the years. I’d like to think on the page a little about how.
Among the most fundamental differences between the Rawlsian Liberalism of Respect and the Hayekian Liberalism of Discovery is the relative status of the political and economic liberties. According to Rawls, the political liberties are extremely important and economic liberties are barely worth worrying about.
At the time, I thought Rawls’ minimization of the importance of economic liberty was dubious and that the key to fusing Rawls and Hayek together was putting it on an even footing with the political liberties. My thinking here was heavily influenced by Loren Lomasky’s rollicking paper, “Libertarianism at Twin Harvard”; several papers that went into Jerry Gaus’ masterpiece, The Order of Public Reason, which came out later that year; and early drafts of John Tomasi’s Free-Market Fairness manuscript, which had been floating around. I still think that Rawls underestimates the value of economic liberty, but I no longer think that including rights to private property, exchange, etc. in the list of Rawlsian “basic rights” really works.
Rawls is broadly misunderstood because students are often taught that the core of his teaching is exhausted by the “difference principle,” the second half of his second principle of justice, which says that social and economic inequalities must benefit the least advantaged members of society. This is how I was first taught Rawls in a survey course, which led me to think that it was a pretty smart “gotcha!” to argue that, actually, footloose capitalism with a minimal safety net benefits the least advantaged members of society, so the inequalities it generates are justified. You’re cornered, Rawls! But this fundamentally misunderstand Rawls’s theory.
Astonishingly, Rawls’ “first principle” of justice comes first. It says:
First Principle: Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all.
Rawls is adamant that his principle of equal liberty must be satisfied before we even think about moving on to the second principle. However, the “basic liberties” Rawls is worried about are mainly civil and political liberties, such as freedom of speech, conscience, assembly, association, rights to vote, hold office, the rule of law, etc. The only economic liberties that make his list are the right to choose your own occupation (i.e., the state can’t tell you what job to do) and the right to personal property (i.e., the state can’t just take your toothbrush).
Moreover, a just system must ensure that these rights and freedoms aren’t merely formal. These rights need to be substantively equal in practice. They need to have roughly equal value to their bearers. This means, for example, that economic inequalities violate the first principle of justice if they enable some citizens to systematically exercise more influence over the political process than their compatriots. Rawls’ point is that we aren’t really political equals, and thus aren’t really free from social relations we would reasonably reject if we were members of society’s least advantaged classes, unless we are more or less equal in our power to determine who holds office and to determine the rules, regulations, and policies our elected representatives enact into law once in office.
This sounds consummately reasonable, but it’s actually an incredibly demanding requirement. As far as I can tell, every single existing political system fails this test. That’s why Rawls’ favored regime type, “property-owning democracy,” doesn’t look very much like anything that’s ever existed.
If you’d like a lot more detail on this stuff, you can’t do better than Kevin Vallier’s excellent essay, “A Rawlsian Case for Libertarianism.” For present purposes, the upshot is that Rawls’ thinks that substantive political equality — the core of his Liberalism of Respect — is incompatible with the kinds of economic rights and liberties that tend to lead to serious inequalities in effective political influence.
My thinking has shifted largely because I didn’t take this point as seriously as I should have. I discounted its importance for two reasons. First, I had been underestimating the value of democracy. Second, I wasn’t as worried as I should have been about the possibility that economic inequality can undermine democracy by leading to the “capture” of public institutions by unduly powerful private interests. Let’s tackle these in order.
When I was working on The Free-Market Progressive with Brink more than a decade ago, I was skeptical of democracy in the way most libertarians are for reasons similar to Hayek’s. The problem, in a nutshell, is that citizens might vote their way into socialist penury unless the constitution takes the possibility off the table by baking certain economic rights into the foundations of the law. Over time, I’ve come to see that this is a misguided line of thought. Here’s what I said about it in a piece on libertarian democracy skepticism a few years back:
If we’re going to have a minimal government, and it’s going to be democratic, then what’s to keep “the people” from voting to make government more than minimal? If you give democracy an inch, won’t it take a mile?
This is the worry behind the Holy Grail of minimal-state libertarianism: a self-enforcing constitution that somehow rules out the possibility of more-than-minimal government—even if absolutely everybody wants it. We can’t vote our way to authoritarian socialist ruin if we can’t vote our way to publicly funded sidewalks.
But this can’t really solve the problem. Hardcore property-rights libertarians are chasing a fantasy—a legal perpetual motion machine capable of reinforcing and protecting the institutions of liberal capitalism by keeping politics from happening. A theory of rights that shrinks the scope of democratic choice to nearly nothing might seem like a clever way to resolve the worry that we will vote our way into serfdom. But it doesn’t resolve anything, because there’s no escape from politics. We don’t get to decide not to have it. The contingency and fragility of the liberal order, which so worried Hayek, never goes away. It’s symptomatic of an ineradicable condition of political life. If most people don’t buy into the system, won’t accord it legitimacy, and badly want something else, then by hook or crook they’ll toss it over and replace it with something else.
The basic Aristotelian observation that human life is inherently political, and that democratic politics in particular is about managing evolving disagreements that never resolve into permanent consensus — that pluralistic liberal political life is an essentially agonistic, contestatory, factional, turn-taking, distributionally high-stakes affair — are points that finally sunk in thanks to the mixed influence Leo Strauss, Hannah Arendt and Jeremy Waldron. Once you’ve accepted this, I don’t think it’s possible to be the sort of libertarian I used to be, even if you retain libertarian-ish policy preferences.
That said, the desire to do an end-run around the political nature of democratic politics by freezing in constitutional amber the once-and-for-all “best” regime isn’t just an error hardcore propertarians make. Far from it. It’s a problem that afflicts Rawls, too. It afflicts many democratic socialists, who, when you scratch them, turn out not to be any more committed to full-bore democracy than libertarians. I think of them as “constitutional egalitarians.” They spend a lot of time wracking their brains coming up with constitutionally fixed requirements that prevent democratic citizens from voting to do things contrary to their ideological conception of justice.
Just as there’s nothing to stop citizens of a thoroughly democratic capitalist democracy from voting their way into socialism, there’s nothing to stop citizens of a thoroughly democratic socialist democracy from voting to de-mandate worker-ownership or to scrap economic regulations and redistributive programs that keep economic inequality in check. “Ideological constitutionalism” is the label I prefer for the broad category that encompasses libertarian, egalitarian and other forms of politically denialist, anti-democratic constitutionalism.
I think most Americans are ideological constitutionalists of one stripe or another, which is a big problem. It generally turns democratic politics into a contest to control the judiciary in an effort to remove your political rivals’ policy preferences from the scope of democratic discretion through the anti-democratic channel of judicial legislation. Eventually, one or another ideologically constitutionalist faction will get a leg up on the others, gain outsize power over the courts and proceed to undermine democracy in even more fundamental ways to lock down the partisan constitution its partisan judges have been successfully authoring.
In my opinion, ideological constitutionalism is a major reason that the GOP has turned authoritarian. It’s also a major reason that the American libertarian movement is, for most practical purposes, a wholly owned subsidiary of the GOP. If you want to re-Lochnerize the Constitution, then Federalist Society veterans of right-wing law and economics junkets are your best hope. Moreover, if you already thought that democracy was problematic because there’s nothing to stop people from voting for highly redistributive big government, then you’ll also worry that democratic majorities will eventually undo the work of the friendly judges you and your allies have worked so hard to impose on the rest of us. In that case, you won’t mind much that the GOP tacked in an authoritarian direction and has been actively shredding the effectiveness and public legitimacy of our democratic institutions. After all, you got a bunch of ideologically favorable judges out of it! What’s not to like? But Gorsuch!
Anyway, it is now my view that constitutions should be structured to facilitate healthy democratic disagreement, deliberation, and policymaking, but should not be structured along the lines of some faction’s contested ideological vision — especially not in a way that can’t be easily undone through ordinary majoritarian means.
In one way, this puts me closer to Rawls. This view suggests that the principal liberties we need to bake into the basic legal structure of our society are the ones that make our constitutionally codified democratic institution work the way they ought to. But in another way, this puts me pretty far from Rawls, who is, in the end, an ideological constitutionalist. Maybe property-owning democracy is great. But if you’re gonna rig the system in advance so that it can only produce property-owning democracy, what’s the point of the democracy part, really?
I think we ought to be aiming at substantive democratic equality, but it’s not clear how it helps to speculate about what regime type people would want if they had it. It’s also not clear that property-owning democracy would work the way Rawls envisions. Indeed, it’s not clear that anybody’s counterfactual vision of the best regime will work out the way they hope.
The actual question we face is something like: what do we do in a society that systematically violates, or fails to protect equally, the rights of members of certain groups because it does not have adequately representative and inclusive democratic institutions? “Implement property-owning democracy” is not an answer to this question. Actual answers might include: peaceful mass protest; inspiring exhortation; propaganda campaign; general strike; armed insurgency; sabotage and hostage-taking; revolution. What we need to know is what’s both practical and morally permissible. Those are tough questions.
This criticism converges with my distaste for “ideal theory” — the idea that we need to figure out what the ideal society looks like so that we know what we’re aiming at. It’s a mistake to think we need a clear conception of “best” to identify “better.” Better is all we need. Wherever we’re headed, we’re not going to get there all at once. The next step is always the next step. All you can really hope for is better and then better again and again and again, etc. If you arrive at point where it seems like things can’t get any better, that’s great. But wait a week.
In any case, I think Rawls is right that political liberties come first, because democracy comes first. But I think he’s wrong to try to conjure his version of ideological constitutionalism out of basic conditions for democratic equality. What’s the point of that? Ask a felon or a sixteen-year-old whether we’ve achieved even formal democratic equality. When it comes to the fair value of the political liberties, we can’t even do the basic stuff right, like making sure that eligible citizens can participate without undergoing a grueling trial. We can worry about perfect democratic equality sometime after we’ve cleared the “not outrageously inadequate” bar.
Still, there’s Rawlsekian fusionist potential here. Jerry Gaus’ argument against ideal theory is pretty Hayekian in spirit. Societies are complex systems with a lot of unpredictable emergent properties. When Rawls argues that either liberal socialism or property-owning democracy best satisfies his two principles of justice, he’s talking out of his ass. He can’t know this. The less a social system resembles anything that actually exists, the more you have to speculate about how it would actually work. You can’t just know that this or that regime type is best relative to Rawls’ standards without evidence that it is. All you can really do is look at the evidence from existing societies and extrapolate a little to identify hypotheses for marginal improvement. You’ve got to try things out to see what works.
But the same Hayekian argument applies to Hayek’s version of ideological constitutionalism as well. There’s a hell of a lot of speculation in The Constitution of Liberty about, say, the constraints needed to prevent democratic institutions from voting their way into fiscal catastrophe. Social science needs to be empirical because this sort of stuff is just too hard to accurately model from the armchair. There’s a lot that’s right about The Road to Serfdom. We’ve mostly given up on the sort of centralized economic planning that he was attacking. But it’s also notable for how terrible Hayek’s predictions about the growth of the welfare state turned out to be. He didn’t see that social insurance and economic planning would end up getting unbundled in the way he argued that they should.
If you give up on ideal theory, on the libertarian constitutionalism that drives Hayekian democracy skepticism, and the egalitarian constitutionalism that falls out of Rawls’ idealization of substantive democratic equality, you’re left with a conception of democracy as an imperfect but still fairly effective mechanism for policy discovery and correction. You also end up with a conception of democratization as the real-world mechanism by which groups get their rights recognized and protected. And maybe the contest between political and economic rights isn’t as important as it might seem to be. It’s an interesting fact of history that people very often fight for political inclusion, participation, and equality because they want a way to stop elites from enslaving and exploiting them economically. That is to say, marginalized people often want the vote because they want the system to recognize and defend their economic rights and interests. That doesn’t mean that fully enfranchised democratic majorities will want to raid the fortunes of the rich. It means that they’re highly likely to demand a scheme of economic rights that prevents the powerful from getting rich by raiding them.
All of which is to say: democracy is terrific. It’s not two wolves and a sheep deciding what to have for dinner. (The people who like to say this tend to be weirdly pro-wolf.) But democratization is also always partial and incomplete. We ought to concentrate more on seeking to transform our half-assed democracies into three-quarters-assed democracies and rather less on arguing that the entire system will always be illegitimate unless it is somehow made to embody our controversial, contested ideological vision of ultimate justice. That sort of thing is ultimately a toxic, damaging expression of fundamental dissatisfaction with the nature of non-ideal democratic politics.
Okay… So, error number two was that I didn’t take the threat that inequality poses to democracy seriously enough. I’ll save a deeper discussion of this for another time since this is long and my view there is pretty complicated. For now, I’ll just point to this 2018 Times column and this Bulwark piece on Elizabeth Warren’s wealth tax.
So… wither Rawlsekianism? Mostly, I’ve just stopped thinking about things in these terms. But as I’ve been writing this, it occurs to me that this is largely because I’ve spent so much of the last decade pushing this synthesis from both directions that I can no longer see the two things I was trying to combine as two things. My internal Hayek has become so Rawlsian and my internal Rawls has become so Hayekian that they actually have fused. And that fused thing, whatever you want to call it, has combined with so many other things that the alloy seems to me more like a new thing with properties that are hard to attribute to any of constituent elements in the recipe.
I still think it can be helpful to see the Hayekian Liberalism of Discovery and the Rawlsian Liberalism of Respect as mutually reinforcing aspects of a larger Liberalism of Progress. But the Liberalism of Progress that survives in my thinking is much less about static ideal theory and the problem of identifying the right ideological constitution. It’s much more dynamic and empirical. It’s about the struggle for liberty and equality through the process of democratization and the rough-and-tumble hurly burly of real, pluralistic democratic disagreement.
Now that I think about it, this is pretty apt and satisfying. Liberal progress is about the next step, about gaining ground in the fight to make the world marginally but concretely better in liberal terms. It’s never about arriving, finally, at anybody’s abstract theoretical best.
Great discussion. For myself, I've come around to simply believing in liberal democracy, as the empirical achievement of the 20th century (with roots obviously going back further but the form as we know it really came to be in that century). There's also a pretty decent range in terms of what's been specifically tried, within that category, along a number of margins, including the ones you discuss here. Thinkers like Rawls and Hayek and other theorists can be helpful for trying to think about why some aspects of it are good or bad, but not, to my mind, for devising some ideal replacement that's utterly different from it. I've been reading a lot of Kukathas lately and he's wonderful for thinking through these things precisely, though ultimately his "archipelago" bears only passing resemblance to a full fledged liberal democracy.
I agree with you that contemporary "constitutionalists" seem to think that written constitutions are about taking things off of the table of politics, which is ridiculous. Part of this of course is just how impossible it is to amend the Constitution here. In my mind, it's simply a good thing to devise instruments for enabling long term commitments that you can get supermajorities on board with. It's just important not to make the commitment so firm that it takes an impossibly large supermajority to change. Most other countries with written constitutions don't struggle with this like we do, and individual States have changed the constitutions hundreds of times, and replaced them entirely more than once, in the same period that the federal Constitution was amended a couple of dozen times. It can be done. But we'd have to change the ratification process first.
I am struck by how FRAGILE the economic Right seems to think Capitalism is. It is a wonderful wealth-producing, poverty reducing machine that is very delicate and liable to be destroyed by an increase in tax collections from well-off individuals, a minimum wage, a tax on net CO2 emissions, or subsidized purchase of health insurance. Socialism is always just around the corner.