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CONSTITUTIONAL CAPITALISM

JOHN TOMASI

(Draft of 8/23/08: Please do not circulate or cite.)

Chapter 1: The Myth of Modern Liberalism

Of Myths, Major and Minor

I have been a parent and a professor for almost exactly the same number of

years. As a parent, my wife Amy and I are raising two children---Peter and

Lydia. As a professor, I have taught political thought to hundreds of students

at Brown University. Most of the students studying politics with me have

been undergraduates, but a good and growing number are graduate students

working toward their Ph.D.s.

From the beginning, I have noticed similarities between the members of

these two groups---my children and my students interested in political

thought. The members of both groups are curious by disposition and are

blessed—developmentally at least---with enviously high levels of energy.

Members of each group demonstrate a wonderful flexibility of mind, a

capacity for the unexpected insight and, at their best, a certain purity of

heart.1 But there is a further similarity between my growing children and my

students of politics that most striking to me: both groups are remarkably

vulnerable to accepting myth as fact.

2

As my children were growing, they believed fervently in many myths. For

example, there was the myth about an elderly local man who often sat

smoking cigarettes on a curb outside a local fish market. This man cut a

striking figure, with a worn Portuguese-style barrette riding low across his

brow and enormous hands, as broad as a lobster’s claws. But this man’s

most intriguing physical feature---to my children at least---was his

prominently missing right front tooth. The story, which I often heard my

children relate in hushed tones to friends in the back seat of our car, was that

this man was the last of a long line of successful fishermen on Narragansett

Bay. This family had a ring, passed through the generations from father to

son, which brought their nets great luck---luck the family would continue to

enjoy on the condition that the ring be worn only during time spent ashore

and never be taken out on the bay. One morning, long ago, this man had

forgotten to remove the ring before pushing off in his skiff for his morning

work. His first catch of the day included a massive striped bass. While

hauling the slippery monster into his boat, the fish pulled the ring off his

finger and escaped into the sea. The next day, while eating fish and chips at

a local clam shack, he found his ring-- in the midst of his batter-fried cod

fillet. While thus recovering his ring, he lost not only his right front tooth but

his family’s piscatorial luck. Unable to catch fish, he had ever since spent his

days outside the local fish market, wistfully smoking and wringing his

powerful hands.

My children believed many such myths. But the terrain of their young

imaginations was dominated by one towering myth. This myth was so

powerful, so vivid, so relied upon, that belief in it seemed to enable belief in

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all the lesser myths. For my children, growing up in a mixed

Catholic/secular household as they did, the master myth of their youth was

that of Santa Claus---an elderly, overweight, hirsute, polar, Caucasian

dandy, said to fly around world in a sleigh, climb down chimneys, and

precisely deliver batches of requested toys, at least to good little girls and

boys.

My children are not stupid. How could they believe such a tale? How could

they continue believing it long after they learned that reindeer are large

Laplandic mammals that can barely run let alone fly, that even the best

delivery companies routinely mess up the simplest of orders, and that the

chimney in our house is blocked by a flue? Yet for years they accepted this

unlikely story as fact. They did this, I suppose, because they first heard the

tale from the persons upon whom they relied as authorities in such

foundational matters—their mother and me. Further, they grew up

surrounded by friends most of whom had heard this story from the authority

figures in their lives. The members of this peer group reinforced in one

another belief in this tale. Later, worries about some parts of this myth began

seeping into my children’s private thoughts [“Why doesn’t Santa visit the

home of Eli Zeltzer? After all, Eli is a (reasonably) good boy.” “How did

Santa get that trampoline down our chimney?”]. Their faith was further

shaken—and ultimately broken---by their increasingly frequent encounters

with peers eager to explode the myth. But for years the myth had remarkable

staying power: my children wanted the myth to be true. The myth made their

lives simpler. It provided them with a role to play during the run up to

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Christmas day. The myth provided comfort. It shielded them from

responsibilities and thoughts they did not want to think.

My students in political thought, at both the graduate and undergraduate

level, are also vulnerable to the lure of myth. There are many minor myths

prevalent among them. For example, there is the story about how a famous

contemporary political and legal scholar—who shall remain nameless here--

-won the Rhodes scholarship that launched his glittering career. According

to the story, this scholar as a youth had been a very bright spark but an

equally poor athlete. As a child, he had thick glasses, poor coordination,

and---on my students’ telling at least---was always picked dead last for

school-yard games. A lack of physical prowess is no disability for an

aspiring academic, but it was a problem for someone hoping to win a

Rhodes scholarship—an honor traditionally reserved for the brainy and

burly. Later, when on the merits of his stellar academic record this person

was invited to the interview stage of the Rhodes competition, he was clever

enough to understand that he had a problem. He responded the way any

good academic would: he went immediately to the local Library. There he

took out a dozen books about tennis and memorized them in every detail.

Throughout his interviews, no matter what the question, he cheerfully turned

the topic to tennis. Afterward, when the committee met to evaluate the

candidates, someone mentioned how strange it was that one of the

candidates seemed to have nothing in his head but tennis, tennis, and more

tennis. Curious at how such a mono-dimensional candidate could have made

it to the interview stage, they dug up his paper dossier---and found a

transcript heavy with A’s. Within the minds of the selection committee the

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hoped-for equation thus fell neatly into place: “Dumb Jock” plus “Bright

Spark” equals …“Rhodes Scholar.”

But, as with my children, so too with my students, there is a dominant, or if

you like, a master myth that dominates their thinking about politics. This is a

myth about the structure and nature of debates about political ideology in

contemporary society. It concerns the relationship of the moral ideal one

affirms and the range of political institutions that one might advocate in

pursuit of that ideal.

In particular, this myth insists that a moral commitment to a social ideal that

many people find attractive requires a commitment to a set of institutional

structures that are claimed uniquely to realize that ideal---institutional

structures that, ironically, have become increasingly worrying to people in

actual liberal societies. The social ideal that many people find attractive is

the ideal of social justice. The set of institutional arrangements that one

might permissibly advocate in pursue that ideal, we are told, are all and only

those political regime-types that march under the banner of social

democracy.

I shall have much to say about the requirements of social justice, and about

the nature of social democracy, in this book. For now though, by “social

justice” I mean a conception of justice that is essentially social in nature. In

the liberal context, principles of social justice guarantee certain liberties of

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citizens, but also include guarantees about the distribution of goods across

the society. Considered socially, justice is a standard that requires that

designers of political structures take responsibility for the effects of political

decisions on the life prospects of citizens across the full spectrum of social

concerns: economic, cultural, familial as well as the properly political. In

the liberal context, a concern for social justice requires that the liberal state

guarantee not only the formal equality of citizens, but takes responsibility

for providing citizens with substantive equality as well. Liberals who are

committed to social justice take political responsibility for the full

experience of citizens, seeking to create and maintain the social conditions

under which citizens can develop the capacities they have as free individuals

committed to sharing a social world with one another.

Like social justice, the term social democracy has a number of meanings. By

“social democracy,” I mean a range of regime-types that, we are told, are

uniquely fitted to realize the values of social justice under modern

conditions. This range of regimes is usually said to begin on the leftward

edges of welfare-state liberalism. It runs robustly through mixed socialist-

capitalist regimes, such as property-owning democracy, and extends out to

include various forms of liberal socialism. [brief descriptions: welfarism,

income transfers; POD, property transfers; liberal socialism, worker-

managed firms].

Social democratic regimes, in all their variety, have an uncomfortable, if not

openly hostile, relationship with capitalism. Advocates of social democracy

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reject the strong economic liberties, and the resulting limitations on

legislative power, on which more robustly capitalist societies rely. Instead of

entrusting social construction primarily to the actions of individuals in

competitive, rule-governed markets, social democrats look to deliberative

political bodies as primary motors of social construction. Whereas capitalist

societies rely on the constitutional entrenchment of economic liberties to

limit the scope of government activities, legislative liberals assign less

weight to the the economic liberties of citizens. Instead, social democracies

are marked by the expansive role they assign to legislative and

administrative bodies in economic affairs. According to social democrats,

such bodies must be empowered to craft particular economic policies,

programs and regulations in direct pursuit of the ideal of social justice.

The master idea I am describing, the idea that dominates the minds of

students of politics today, is that a certain relationship obtains between the

ideal of social justice and the institutional regimes of social democracy. That

relationship is this: a moral commitment to the ideal of social justice

requires a political commitment to the institutions of social democracy. So

too, a rejection of the institutional forms of social democracy bespeaks a

rejection of value of social justice. [[If you are foundationally committed to

social justice, you must ordinarily support political parties of the left. If you

support political parties of the right, your commitment to social justice is

immediately in doubt.2]]

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Among students today, therefore, a moral commitment to social justice is

widely thought to require a commitment to the institutions of social

democracy. Within the context of liberalism, social justice and social

democracy are linked not only tightly but exclusively.

Social justice and social democracy are uniquely linked. This idea could be

analyzed and discussed wholly in conceptual terms, and thus without any

discussion of liberalism’s intellectual history. However, with this particular

idea, the path of intellectual development lends immediate plausibility to the

idea itself. To fully understand the power of this idea, therefore, it is useful

to consider the historical narrative in which the idea is embedded. After all,

the history of liberal thought, like the history of many actual liberal

societies, is usually described as a tale of two great historical stages. There

was an early classical stage---defended by thinkers such as Adam Smith and

made manifest as a practical program of political life in England and

America during the 18th and 19th centuries. Classical liberalism was then

displaced by modern liberalism. Initiated most notably by Progressive

thinkers in the period 1880-1920, liberalism became dominant as a political

program with FDR’s New Deal in America and ran virtually unchallenged at

least through Lyndon Johnson’s idea of the Great Society. Intellectually

rooted in Progressive era thinkers such as T.H. Green and L.T. Hobhouse

and developed by scholars such as John Dewey, modern liberalism

catapulted to its present position of intellectual dominance with the

publication of John Rawls’s A Theory of Justice and the resulting explosion

of scholarship in support of the modern liberal approach. Rawls introduced

the technical mutations by which the modern form of liberalism was able to

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morally differentiate itself from the old. In the decades since, modern

liberalism, with its commitment to substantive equality and its expansive

conception of the legislative activity, has propagated with ever greater

successful among the population of elite political thinkers. Viewed purely

from a moral perspective, the social-democratic institutions of modern

liberalism are widely regarded as fit, super fit.

Because the “classical” and the “modern” emerged in this sequence, it is

difficult to think of the two positions as merely two conceptual possibilities,

each offered to us on equal footing with the other. Instead, the history of

liberal thought, and the very names we use to describe the two visions of

liberalism, makes it natural for us to think of these two approaches as

standing in an evolutionary relationship to each other. Classical liberals

rejected or were unaware of the idea of social justice. They understood the

liberal commitment to equal freedom in purely formal terms. For that

reason, they advocated an enthusiastically capitalist interpretation liberal

good-governance. Modern liberals came to accept the idea of social justice--

-indeed, they invented or at least made explicit that idea. Impressed by the

idea that people need resources if their freedoms are to be valuable, they

came to see the requirements of equal freedom in substantive rather than

purely formal terms. Modern liberals thus advocate a more active and

expansive role for the liberal state, especially in economic matters. Modern

liberals advocate the institutions of social democracy, that is, because those

institutions, uniquely among liberal regime proposals, aim at achieving

social justice.

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In this way, the history of ideas lends great support to the idea that the

capitalist and the social democratic interpretations of liberalism stand in

moral evolutionary relationship to each other. That idea helps to secure the

morally dominant position currently occupied by modern liberalism. Our

awareness of liberalism’s intellectual history makes it difficult for us to

evaluate the choice between the capitalistic and the social democratic

versions of liberalism as though we were being offered a straight-up choice

between “Liberalism: Version A” and “Liberalism: Version B.” Instead, the

choice that comes down to us is heavily encumbered by the claims of

evolutionary superiority that are entwined with intellectual development of

the modern liberal view. For all these reasons, the choice between capitalist

and social democratic liberalism is presented as a choice between a stone-

age view and its morally evolved offspring: cro-magnon liberalism vs.

liberalismus sapiens sapiens.

On this evolutionary view, there is nothing obviously objectionable about

the ideological imbalance that pervades the contemporary academy.3 This

imbalance merely reflects what evolutionary biologists call selection-bias

and there is nothing problematic about that (a species, after all, is an

interbreeding population). The myth of modern liberalism gives us every

reason to believe that, when it comes to contemporary political thought at

least, excellence is species-specific. Within the intellectual environment of

the academy today, a political project’s “importance” is effectively revealed

by the depth of that project’s understanding of, and commitment to, some

piece or other of the democratic framework of modern liberalism. No

scholar, as a scholar, could responsibly object to this standard----provided,

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of course, that modern liberalism really is a morally distinct and superior

adaptation of the classical liberal view.4

[[Let’s look more closely at the historical narrative that underlies this

evolutionary view. NOT giving a comprehensive history of liberalism or

ideas from which its sprang—many volumes. Rather, provide sketch of key

stages of intellectual history that give the myth of modern liberalism its

special power….]]

From Feudalism to Liberalism

Once upon a time, the social world of Western Europe was very different

from the world we know in America today. Social and political relationships

in that earlier European world were essentially hierarchical. Rather than

relating to one another horizontally and individually—with each citizen

encountering other citizens as political equals---social relations were vertical

and status-based. People were born and ordinarily lived out their lives within

one or another role-differentiated class. The function of the state was to

define and preserve those differentiations of social role, thus ensuring the

stability of the social order across generations.

In England, the hierarchical system I am describing was known as

feudalism. The feudal period is typically said to have begun in 1066, the

year William the Conqueror, Duke of Normandy, defeated Harold, King of

the Saxons, at the Battle of Hastings. People in feudal England experienced

life not as free and equal citizens but as embedded members of hereditary

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groups. Far from experiencing life as individual authors of their own fate,

for people in the feudal world their place of residence, their occupation, and

even the particulars of their family life were typically assigned on the basis

of inherited social rank. The central function of the state was to preserve the

social order, embodied in these differentiations of rank and role.

Under the Norman system, the English population was divided into four

great strata or title-castes: king, barons, knights, and serfs. At the top of this

pyramid stood the king and his court. The Royal Court was the seat of

governmental power. Because the king personally held title to all the land in

the country, economic power was concentrated in the Court as well. The

king would lease tracts of land to a class of barons, who in turn swore oaths

of homage and fealty to the king, thereby becoming vassals to him. The

barons held great power within their territories (called manors), minting their

own money, setting up their own courts and enacting regulations and levying

taxes as each saw fit. The barons, in turn, assigned portions of their land to a

class of knights who served as the military wing of the feudal order. The

knights, in turn, controlled the distribution of land and occupation among the

mass of common people, known as villeins or serfs. The serfs were required

to provide their lords with whatever labor and goods they might demand.5

Feudal England was a status-based form of social order. Far from affirming

the values of equality and freedom, the feudal order was grounded firmly on

the values of differentiation and constraint. Because it is based on the legal

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enforcement of class-differences, feudalism is often thought of as a

quintessentially anti-liberal doctrine.

Of course, the realities of English life did not conform neatly to this

idealized feudal form. In England, there were stirrings of political freedom

almost from the start of this feudal period. In 1101, less than fifty years after

Hastings, William’s son Henry I assented to the Charter of Liberty, which

proved to be the first in a long line of such charters. These charters, the most

famous of which was the Magna Carta of 1225,6 represented a strong and

building set of restraints on royal power by means of law.

These Great Charters, in turn, provided an early platform for the

development of a system of rules governing the daily interactions of English

subjects. These rules, known as the common law, carved out relatively

secure areas for interpersonal action and plan-making. In England, liberalism

as a political doctrine was beginning, quietly, as the common law began

slowly but steadily to develop. Common law precepts made the social world

increasingly navigable to individuals on a day-to-day basis. They enabled

people to better assess the risks and rewards of ventures they might consider

launching with one another. Backed ultimately by the formal legal restraints

established in Magna Carta, the common law protected subjects both from

the vicissitudes of daily life and from arbitrary or discretionary uses of royal

power.

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Of course, the main struts of the status-based legal framework of feudalism

were still in place. That system continued to impose differential horizons on

people’s life-prospects, based on principles of hereditary status.7 Still,

ordinary Englishmen grew ever more accustomed to directing their own

affairs, and to living within social structures created mainly by their own

actions. Increasingly, these people saw this system of law as a common

cultural inheritance. Slowly, the liberties protected by the common law came

to be seen as the birthright of every English subject.

Henry I’s Charter of Liberty of 1101 thus proved to be the thin edge of a

great intellectual wedge. That wedge sent a crack running through the

history of the Western world. The crack lengthened first through Magna

Carta and then widened with the growth of common law. Eventually, the

force from this wedge split the feudal world and released the liberal

revolution.

As an intellectual movement, the start of the liberal revolution is usually

traced to 1689. This is the year John Locke published his Second Treatise of

Government.8 Locke rejected the idea that the essential features of the feudal

order---the ownership of all property by the king, and the division of society

into fixed hereditary classes---had in some way been ordained by God.9 To

gain a clearer view of the moral nature of men and of the sort of political

community God intended for them, Locke imagined people as they might be

in a pre-political state of nature.

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Considered in their natural state, Locke argued, people are born free and

equal as children of God. They are free in that they needed permission from

no other person in order to act. They are equal in the sense that there is no

natural political authority of one person over another.10 People are also by

nature needy. They must cooperatively interact with the raw, God-given

bounty around them in order to fill their stomachs, shelter their bodies, and

flourish as children of God. The political problem facing people was a

common and public one: how to devise a form of government appropriate to

the condition of freedom, equality and need into which people by nature find

themselves?11

Famously, Locke found the beginnings of an answer to this question in his

observation that each person, from birth, is a “self-owner.” Owning

themselves, they own their labor too. By mixing their labor with things in

the world, people developed ownership relations with those things.12 For

Locke, property is part of the natural fabric of the universe. Because some

people work harder and more effectively than others, inequalities of holding

are part of that fabric too. In the early stages of social development, these

inequalities will be limited the requirement that no one takes so much that it

spoils.13 The invention of money amplifies the scale of inequality while

increasing the productivity of labor. Since people accept the custom of

money, they accept those greater inequalities too.14 On Locke’s telling, the

processes of property acquisition that generate an increase of wealth also

supports a growth in the population, even as the amount of productive land

available for appropriation becomes more scarce. To escape these

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“inconveniencies,” Locke says people agree to establish a civil society and

government. What should the moral basis of such a government be?

In writing the Second Treatise, Locke was aware that many of his fellow

citizens were in danger of accepting “the dangerous belief that ‘all

government in the world is merely the product of force and violence.”15 By

beginning his argument with an account of man’s condition in the state of

nature, Locke sought to present the question of legitimate government in a

more hopeful way. If people are by nature free and equal, Locke argued,

legitimate government must be founded on the consent of those to be

governed. People who are free and equal, however, would not consent to be

governed by a legal order that forced some, by birth, into lives of bondage or

submission to others---the way the status-based feudal system had done.

Instead, Locke offered the radical suggestion that governments are

legitimate only when they act to preserve the natural freedom of all citizens,

no matter their parentage or place of birth. Governments did not exist to

enhance the glory, or increase the wealth, of any hereditary class---whether

aristocrat or king. Political power, Locke suggested, was a public, rather

than a private, power.16 The only legitimate function of government was the

equal protection of the natural rights to life, liberty and property. These

rights held equally by all citizens from the moment of their birth as children

of god.17

If Locke provided the moral foundations for liberalism, it was Adam Smith

who most clearly set out the institutional character of the liberal political

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regime. According to what Smith called “the system of natural liberty”

governmental activity should be limited to three areas: national defense, the

provision of a limited range of public goods, and the administration of

justice.18

It is the liberal conception of justice that most strikingly differentiated this

“liberal plan,” as Smith called it, from the system of royal patronage it

sought to displace. The essence of the liberal program lay in the idea that the

purpose of the state is to protect the freedom of citizens equally, and that the

proper way for the state to accomplish this goal was aggressively to limit the

range of its own activities. Whereas the feudal system had granted rulers the

legal power to determine the shape of peoples economic affairs and their

personal lives, the liberal order sought to use laws that would secure the

freedom of individual people in all these areas. Thus the liberal program

came to include religious toleration, freedom of speech and of association,

freedoms of private life (such as freedoms regarding movement, occupation

and marriage) and, above all, economic freedoms such as the right to the

private ownership of productive property and the right freely to enter into

contracts. The liberal conception of justice the required that the state

restrain itself from impinging on the freedom of the citizens in any of these

areas. Smith wrote, “Mere justice is, on most occasions, but a negative

virtue, and only hinders us from hurting our neighbors…we may often fulfill

all the rules of justice by sitting still and doing nothing” (add bit on formal

equality of opportunity: careers open to talents). 19

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This idea that justice could be achieved mainly through the restraint of

governmental activity was but a reflection of Locke’s basic contention that

all people are by nature free and equal. The state respects such people when

it does not grant legal advantages, or impose restrictions, on the basis of

people’s class, hereditary status, or personal connections. Of course, it

would take some time for the full implications of this revolutionary doctrine

to be worked out. On the economic front, the commitment to formal equality

generated pressure against vestigial feudal practices such as the royal

conferment of monopolies, and of estate-securing practices such as

primogeniture and entailment. Politically, the ideal of formal equality served

as a ground for criticizing peerages and other forms of hereditary political

authority, and would eventually be understood as grounds for requiring

universal suffrage and, eventually, full political equality for citizens from all

classes, genders and races. These reforms, hard won products of political

struggles over many generations, were—from a conceptual perspective---

merely windings out of what Smith had called “the liberal plan of equality,

liberty and justice.”

With the writings of Locke, Smith and other thinkers such as David Hume

and Benjamin Constant, a new ideal of social order appears in the political

imagination of the West: an order of law-governed flux. This is the order

called commercial society, though it has been known by many names.

Advocates such as F. A. Hayek refer to it as the Great Society; critics such

as Karl Marx have called it “capitalism.” Early defenders of this social ideal

called it simply “liberalism”---as when Adam Smith spoke of “the liberal

plan of equality, liberty and justice.” 20 Under this liberal ideal of stable flux,

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governments are to provide a secure set of laws protecting property and

exchange, laws equally applicable to all, and known in advance to be more

or less fixed.

Within the stable frame of strong but limited government, however, all else

is change. Social order---the character and orientation of human

commitments, expectations and desires---is constantly creating and

recreating itself from within.21 The particular distributional pattern that

might characterize the social world at any given moment is not itself the

product of anyone’s intention or design. Rather, particular social patterns

emerge as the unplanned and ever changing product of the many choices

individual citizens make in pursuit of their own goals and ends. The primary

task of the state is to provide secure rivets to those citizens, in the form of a

state-backed set of individual rights and liberties. Liberal citizens use those

rivets as they go about the busy task of binding themselves with others and

thereby constructing their social world.22

This liberal ideal of commercial society did more than challenge all existing

political and social traditions—the prevailing political views or particular

social hierarchies of the day. Much more, the commercial ideal challenged

the notion of tradition itself. No longer would the social world be structured

according to legally enforced patterns passed down from one generation to

the next, or indeed according to any predetermined patterns at all.

Henceforth, order would be the ever-changing product of the exercise of

human freedom under conditions of formal legal equality.

20

The system of natural liberty proved to be a potent solvent against the

gummed up social hierarchies of 17th and 18th century Europe. The historian

T.S. Ashton describes the effects of this liberal program in England during

the late 18th and early 19th centuries: “Many old privileges and monopolies

were swept away, and legislative impediments to enterprise removed. The

State came to play a less active, the individual and the voluntary association

a more active, part in affairs. Ideas of innovation and progress undermined

traditional sanctions: men began to look forward, rather than backward, and

their thoughts as to the nature and purpose of social life were transformed.”23

However, almost from the beginning of the liberal revolution, concerns were

being expressed about the liberal, commercial order---and these concerns

were expressed from the perspective of the value of liberty. The early

liberals emphasized private property, commercial exchange, and guarantees

of formal legal equality as way to free people from state-imposed hierarchies

based on hereditary class. [[yet, adam smith’s worries about negative effects

of commercial order, yet he still advocates24.]]

But what if the commercial society of the liberals did more than cause the

social disruptions and personal challenges to workers that Smith described?

What if, as a practical empirical matter, the political regime of the liberals

turned out to generate a hereditary class structure of its own, one based upon

the apparently unlimited right of individuals to accumulate property?

Granted, the equal freedoms guaranteed by Smith’s commercial order were

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acid to the feudal practices of status-based economic preferment. Yet the

system of private rights to productive property the underlay that system also

made possible the amassing of great new fortunes. That same system of

property rights protected wealthy families who wished to pass their wealth

on from one generation to the next. Locke had argued that the essential role

of the state is to protect property rights. But what if a political regime based

on property rights predictably---even if not intentionally---generated a

society divided by hereditary class distinctions? In this case, the so-called

“system of natural liberty” turns out to be yet another device by which

inequalities of status are coercively imposed on the social order.

This line of worry about the system of economic freedom extends at least

back to Rousseau. In his Discourse on the Origins of Inequality, Rousseau

suggested the Locke and the other state-of-nature theorists had not gone

back far enough to gain a true picture of man’s natural condition. On

Rousseau’s mytho-poetic telling, the real starting place of human history

was not merely pre-political, as Locke had claimed, but was pre-social and

pre-linguistic and even pre-pyschological as well. Human history proper

antedates people’s gaining an awareness of self, or even an awareness of

time. In this, their true natural state, people lived spontaneously and thus

were perfectly free and happy.

For Rousseau, the gradual but perhaps inevitable emergence of human

culture progressively corrupted people and fastened ever heavier chains

upon their freedom. Political society must be seen in this light. Hobbes, a

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proto-liberal, had argued that the state and laws were necessary to save

people from the war of all against all that Hobbes said raged in the state of

nature; Locke, more gently, saw the state as required to remedy certain

“inconveniencies” that people faced in that natural pre-political condition.

But both these thinkers saw the arrival of the state as an unambiguous moral

improvement. Rousseau, by contrast, did not see civil society or its laws as

simple correctives. Instead, Rousseau argued that laws often caused the

very disorders they are then meant to restrain.25 Rousseau saw this unhappy

cycle as swirling with most dangerously around laws that secured rights to

the private ownership of property. Laws protecting property, far from

protecting people’s equal freedom, forced people into relations of bondage

and inequality regarding one another. According to Rousseau, “inequality,

being almost nonexistent in the state of Nature, owes its force and growth to

the development of our faculties and the progress of the human Mind, and

finally becomes stable and legitimate by the establishment of property and

Laws.”26 Thus we see in Rousseau the beginnings of the worry that market-

based liberalism, far from providing an antidote to class-based society, may

be yet another means of generating and fixing in place a social world that is

essentially vertical and adversarial.

Closely connected, Rousseau is also a seminal figure in what would become

the continental school of liberalism. Where liberalism in the British tradition

focused on economic freedoms, the continental school concentrated from the

start on issues of democracy and public deliberation. This reflected a

different turn of mind between British and Continental thinkers---one more

practical, the other more theoretical---and rested ultimately on different

23

conceptions of reason itself. 27 The British tradition of liberalism was based

in an evolutionary conception of reason. On this approach, rules have their

authority in large measure because they have proven themselves effective at

advancing human purposes over time.

Continental liberals shared with the British liberals such as Locke, Hume

and Smith a special concern for protecting the civil and political freedoms of

individuals. But, unlike the British liberals, thinkers of the French

enlightenment such as Rousseau and Voltaire proceeded from a rationalist

perspective. That perspective insisted that, in principle, the whole of the

social world should made to accord with principles that are themselves the

product of self-conscious human deliberation. Where British liberalism was

based on an evolutionary conception of reason, continental liberalism was

founded on a constructivist view. [[supplement: Hayek suggests that

European absolutism had swept away many of the liberties that had been

preserved in England, giving the constructivist approach a clearer field on

the continent.]] Those methodological differences were reflected in subtly

different understandings the idea of freedom itself. Thinkers in the British

tradition tended to think of freedom as requiring a legally guaranteed

absence of restraints. By contrast, the Continental tradition saw freedom as

centrally involving the political self-determination of a group by means of

public deliberation.

The hammer of Rousseau’s critique of commercial society would soon be

picked up swung more boldly by the young Karl Marx. In 1844, Marx wrote

“On the Jewish Question,” an essay that outlined a powerful critique of the

24

prevailing liberal political ideal. Marx’s critique led not only to the

launching of communism---a revolutionary ideological rival potent enough

simultaneously to challenge liberalism on its evolutionary and its

constructivist formulations. Marx’s critique also led, we are told, to the

massive recasting of liberal theory into its modern, egalitarian form.

Like Rousseau, Marx focused his critique on the liberal ideal of equality.

Locke says that people should be recognized as equal holders of rights.

Because people are all equally children of God, Locke argued, they should

have equal standing on this world of God’s creation. But, in actual practice

Marx suggested, a commercial society based on the ideal of formal equality

will be a society marked by fixed and enduring class divisions, divisions

based on people’s standing in the economic order. People’s material

holdings---the money and goods they have---affect their life-prospects at

least as much as their political status. It is a farce, Marx claimed, to call

people in such a society “equally free” merely because of the legal equality

of status granted to them by courts. The liberal ideal was internally

inconsistent: the formal equality of liberalism was a mask behind which hid

a society as unequal, as hierarchical, as corruptly exploitative, as any other

in the history of mankind. Indeed, Marx described liberalism as but the latest

in the long historical line of status-based social orders.28 This commercial

ideal of the early liberals was not feudalism. But the effects of each system

on the lives of real people were effectively identical.29

25

[[We can put the Marxian point in familiar, contemporary terms. Bill Gates

and the lowest paid janitorial worker charged with cleaning any Microsoft

office enjoy exactly the same legal standing with respect to their right to

hold and use productive property. But guess what? You, the reader of this

book, have exactly the same right to express and publicize your political

opinions as Rupert Murdoch or the CEO of Time/Warner communications.

But guess what? Similarly, I myself have exactly the same right to run for

elected office, or to seek a position of power as a political appointee, as

anyone born a Rockefeller, a Kennedy, a Clinton or a Bush. But guess what?

As a matter of law, children in Palo Alto, California are exactly as free—and

no more free---to seek a quality education as children from the adjacent

town of East Palo Alto, one of the most blighted and violent communities in

America. But guess what? Liberal societies, even if they fully realize the

liberal ideal of formal equality, will be societies of massive and enduring

inequality. Indeed, the more purely committed a society is to the liberal ideal

of commercial society, the more massive and enduring the inequalities in

that society will be. But liberalism, on any of its classical formulations at

least, has no resources even to recognize these unequal outcomes as a

problem.]]

Toward the close of the 19th century a shift began to occur in the liberal self-

consciousness. Intellectuals who affirmed the primacy that liberals

traditionally accorded to the personal and political liberties of individual

citizens nonetheless became increasingly concerned about the economic

fairness of the classical liberal social order. George Bernard Shaw satirized

the traditional liberal understanding of liberty as “the right to have tea at the

26

Ritz---for anyone who could afford it.”30 Progressive literary figures such as

Upton Sinclair drew the attention of people to the negative effects of

industrialization on workers at the bottom of the economic hierarchy. During

this same period, there was also a rapidly growing confidence in the ability

of government officials, economists, and other “social scientists” to shape

the social world according to their plans. Intellectuals in Britain and

America increasingly called upon government agencies to take a more active

and direct role in the organization of social life.

In response to concerns about the old liberal paradigm expressed by Shaw

and others, liberal philosophers such as T.H. Green and L.T. Hobhouse

began defending a new conception of liberal justice: social justice. (rooted in

the French revolution---add bits from Fleischacker, who locates the first

demands for social or distributive justice in that continental tradition).

Rather than seeing justice as a property of individual actions, Green and

Hobhouse argued that social outcomes, and even the shape of distributions

over a society as a whole, could properly be described as just or unjust. By

1920, John Dewey was calling himself a “new liberal.” These new or

modern liberals affirmed the Lockean idea that government institutions

should be designed so as to respect the moral character of persons as free

and equal citizens. Like the earlier liberals, they also affirmed the

importance of people’s civil and political liberties toward this end. Yet, in an

important break with the British liberals such as Smith and Spencer, these

new liberals did not assign any foundational importance to people’s

economic liberties. Instead, they thought economic matters should be

brought under more conscious political control. In particular, these

27

progressive thinkers thought that government agencies should be free to

create programs and enact regulations that would ensure that the distribution

of goods and opportunities in society would be fair. The waste and

instability of “flux” would be replaced with the efficiency and rationality of

planning. The new liberal program was not the protection of people’s

negative liberties or the pursuit of economic efficiency. Instead, the new task

of liberal government was the realization of social justice.

[add bit: controversy over the very name liberalism begins here: Spencer:

“The New Toryism” (1890ish): where “liberal” once referred to a specific

regime orientation---that of strong property rights and limited government---

an orientation that Spencer says actually had greatly improved the condition

of all members of society, in England the term “liberal” was increasingly

used to describe any political program that merely announced an intention of

bringing about benefits to all citizens----including programs that violated the

very principles of government that had originally made those benefits

possible; later: J. A. Schumpeter: “as a supreme but unintended

compliment, the enemies of the system of private enterprise have thought it

was to appropriate the label”; and/or similar idea as expressed by Mises

[1935ish.]31

For some, the idea of economic and social planning proved so attractive that

they abandoned liberalism altogether---joining into the lively debates among

socialists about how best to hasten the arrival of the society of real material

equality which Marx had described as an historical inevitability. But for the

many intellectuals who remained committed---however now vaguely and

28

uncertainly---to the liberal paradigm, these were decades of just limping

along. With the rise of analytic philosophy in the early decades of the 20th

century, philosophy took a long detour into problems concerning the

philosophy of language. While the state centric program of the new liberals

gained increasing support among the general populations of liberal societies,

normative political philosophy in the liberal tradition lay dormant. Liberal

thinkers in the middle part of the 20th century could perhaps argue with

sophistication against the extreme remedy of socialism. But they were much

less willing or able to explain the moral foundations of the political and

jurisprudential regime-type that America was fast becoming. If no one could

quite say what fundamental moral principles could justify FDR’s famous

“second bill of rights” or exactly how that view related to the liberal view

which guided American of the Founding Period, it was clear enough what

this fundamental view was not: it was neither---and with equal vehemence—

Marxist socialism nor the cruel and bankrupted doctrine of laissez-faire.32

This new liberalism was a child of the old. But exactly who its parents were,

and what their exact relations were to each other, no one could say and polite

people found it better not to ask.33

Liberalismus Sapiens Sapiens

Early in the summer of 1971, John Rawls published A Theory of Justice and

everything changed. Political philosophy in the liberal tradition was jolted

like a patient hit with electric shocks.34 A Theory of Justice was 587 pages of

technical virtuousity---detailed and intricate enough to satisfy even the most

querulous analytic philosopher. Most remarkable about the work, however,

29

was the fearless way Rawls confronted the Marxian critique of the old

version of liberalism and adopted many socialist worries about Smith’s

“system of natural liberty” as his own.

Rawls demonstrated that liberals should become sensitive to the concerns of

liberalism’s critics regarding material inequality, but could do so without

abandoning the primary place liberals had traditionally accorded to

individual freedoms (at least, those concerning personal, civil and political

freedoms). Rawls argued that liberalism---against its classical formulations--

-carries within itself coercively backed guarantees for the correction of

material inequalities such as those Marx feared.35 The liberal commitment to

equal freedom requires more than mere equality of status. A commitment to

equal freedom also allows, indeed requires, that the liberal state act to rectify

inequalities in the worth of people’s liberties---at least where those

inequalities become great enough to threaten people’s status as political

equals. Rawls acknowledged that the worth of liberties is importantly

connected to each person’s material resources. The main thrust of A Theory

of Justice was to show that concerns about inequalities in the worth of

liberties can be built into liberal theory at the level of justice. In addition to

mandating full formal equality for all citizens, liberal theory was now said to

generate far more ambitious principles. These principles require that the

state seek to rectify an array of inequalities in people’s actual life prospects.

Crucial to these principles was a distinction between inequalities that result

from peoples choices and inequalities that result from peoples unchosen

30

circumstances---such as differences in people’s holdings that result from

differences in their natural talents or their social starting places. While the

former sort of inequalities might be morally permissible, the latter

inequalities were unjust—based as they were on traits or social facts that are

“arbitrary from the moral point of view.” Rawls’s famous Difference

Principle, which sees liberal justice as requiring that social inequalities be

arranged so as to benefit the least well-off members of society, became the

flagship feature of modern liberalism.

Of course, the story continues, in beginning the tradition of modern liberal

political philosophy, Rawls also gave birth to a version of that modern view

with a unique genetic-coding from Rawls’s himself. There are technical

features of Rawls’s unique version of modern liberalism---his apparently

sweeping rejection of desert, for example, and his preference for socialism

over the wage-oriented redistributive schemes of the welfare-state---that

separate Rawls’s particular formulation from that of other major modern

liberal figures such as Ronald Dworkin .36 It is the motivating idea behind

Rawls’s account of modern liberalism, rather than any technical feature of

the particular theory of liberal justice that Rawls worked out, that has

transformed not only the profession of political philosophy but the path of

liberal thinking itself. That motivating idea, the bottle of champagne that A

Theory of Justice cracked against the side of the modern liberal ship, is that

liberals, while still being liberals, must concern themselves not merely with

the formal equality of citizens but with the substantive equality of citizens as

well.37 The institutional features of the modern liberal state are not merely

31

requirements of political expediency. They are requirements of liberal

justice.

Along with the many important technical innovations they developed, the

main contribution of scholars such as Rawls and Dworkin was to clarify the

shape and moral grounding of what had become known as modern

liberalism. For the myth of modern liberalism to be fully formed, however, a

similar clarification was needed regarding the shape and moral grounding of

the rival liberal view against which modern liberalism defined itself. The

emergence of libertarianism, especially as defended by Robert Nozick in

Anarchy, State and Utopia, is widely taken to have provided just the sort of

clarification of earlier classical liberal thinking. As one commentator puts it,

“…Nozick is to the libertarianism that preceded him somewhat as Rawls is

to the advocates of distributive justice who preceded him: the first person to

provide a clear articulation of the position at stake and its implications.”38

[thinkers such as Smith/Hayek/Friedman held nuanced and conceptually

messy understandings of classical liberalism: their detailed institutional

recommendations (eg state support for educational opportunity; guaranteed

income, etc) are left unclearly connected to self-professed moral foundations

(society as private; self-ownership; economic efficiency; or some uneasy

mix of the three).]

[BUT THEN: quick summary of the libertarian position associated with

Nozick: key points: claims to be heir of Locke; self-ownership; principles of

justice should be “historical” rather than “patterned”; that questions about

the justice of distributions are reducible to questions about the justice of

32

prior appropriations, exchanges, transfers; thus formal conception of

equality, according to which economic freedoms are moral absolutes.]

With libertarianism in place as the philosophically clarified classical liberal

rival to modern liberalism, all the pieces are arranged for the myth of

modern liberalism to be locked into place. The moral commitment of

modern liberals to the substantive equality of citizens can now plausibly be

said to be not merely a standard feature of the modern liberal view. Instead,

a commitment to substantive equality can now be said to be the defining

feature of modern view. A commitment to substantive equality is the trait

that morally differentiates the modern and the classical species of liberal

thought. Thus, according to the story we are considering, the difference

between modern, egalitarian forms of liberalism and classical, “libertarian”

forms is at base a moral difference. Liberals in the classical tradition

advocate an institutional regime that emphasizes the economic freedoms of

citizens---typically by entrenching those economic freedoms at the

constitutional level. In this way, they seek to minimize the direct control of

legislative bodies on economic affairs. Classical liberals may advocate this

institutional form because of their awareness of practical concerns about

corruption. But the deep reason they affirm the commercial institutional

form is that they have a moral commitment only to formal equality. Liberals

in the modern tradition, by contrast, are more comfortable placing economic

decision-making power in the hands of elected officials. As an institutional

matter, they treat people’s civil and political liberties as having a

fundamentally different status than their economic liberties. This is because

33

they recognize that liberals must be committed to substantive equality as

well.

Will Kymlicka, in a popular introductory text, spells out this basic lesson:

“The standard left-wing critique of liberal justice is that it endorses formal

equality, in the form of equal opportunity or equal civil and political liberty,

while ignoring material inequalities, in the form of unequal access to

resources. This is a valid criticism of libertarianism, given its commitment to

formal rights of self-ownership at the expense of substantive self-

determination. But contemporary liberal egalitarian theories, like those of

Rawls and Dworkin, do not seem vulnerable to that same criticism”.39

Works written for professional audiences—graduate students and the

professoriate---routinely distinguish modern liberalism from earlier forms of

liberalism on this same moral basis. The most enthusiastic adherents of

modern liberalism, such as Samuel Freeman, see the line of liberal thought

leading to Rawls not merely as an advance but as something close to a

culmination of liberal thought. Accordingly, Freeman suggests that we adopt

the term “high liberalism” to refer to the modern view that Rawls clarified so

brilliantly. 40 As always, however, the main story line is the same. As

Freeman puts it, “A basic tenet of high liberalism is that all citizens, as a

matter of right and justice, are to have an adequate share of material means

so that they are suitably independent, capable of governing and controlling

their lives and taking advantage of their basic liberties and fair

opportunities” (117). And yet: “Classical liberals by contrast do not envision

34

a nonmarket mechanism that ensures each person a right to income and

wealth adequate to provide individual independence” (118).

Freeman is careful to point out that classical liberals sometimes accept the

idea that the government should provide a social safety net, at least in cases

where the actual operations of market society leave some people in severe

poverty. But they accept such policies merely to maintain the market system

itself (for example, by preventing social strife or as a requirement for the

realization of economic efficiency) rather than out of a concern for any value

that requires them to track the levels of material well-being experienced by

all citizens---poor and rich alike. High Liberals, by contrast, are manifestly

committed to tracking the levels of material well-being experienced by the

general citizenry.41 Further, High Liberals, uniquely, are able to tie their

commitment to material egalitarianism into the foundation of recognizably

liberal values. After all, as Freeman tells us: “Without sufficient income and

wealth, one’s liberties and opportunities are worth little” (117). Thus: “To

ensure that everyone’s liberties and opportunities are of significant value, the

high liberal tradition envisions nonmarket transfers of income and wealth of

some degree, to be arranged by political institutions” (117-8).42

Thomas Nagel speaks for the mainstream of the profession when he

describes modern liberalism as representing something more than a mere

alternative to classical liberalism. Instead, the fairness-based conception of

justice Rawls inspired is liberalism in a morally evolved form. As Nagel

puts it, “Rawls’s theory is the latest stage in a long evolution in the content

35

of liberalism that starts from a narrower notion, exemplified by Locke,

which focused on personal freedom and political equality.” Nagel continues,

“That evolution has been due above all to a recognition of the importance of

social and economic structures, equally with political and legal institutions

in shaping people’s lives and a gradual acceptance of social responsibility

for their effects.”43 Liberal societies should retain their constitutional pursuit

of justice by means of “negative liberties” in areas of speech, association,

and religion. They might also continue to provide some constitutional

protection for rights of property and freedom of contract, at least in some

suitably qualified form. But, Nagel tells us, the pursuit of social justice in

liberals societies henceforth will need also to be conducted by a thick array

of legislative measures designed to ensure fair social outcomes: “tax policies

and various approaches to social security, employment, disability

compensation, child support, education, medical care and so forth.”44

This, then, is the master story among liberal political philosophers and

theorists in our time. According to this story, liberal thought has passed

through two great moral evolutionary stages: a classical, formal-egalitarian

stage and a modern, material-egalitarian stage. Early liberals pursued justice

primarily by means of constitutional measures protecting negative liberties

and securing the conditions for the development of commercial society.

They advocated this institutional form because, on their conception, justice

was a purely formal, or “procedural” concept. Modern liberals likewise rely

upon constitutional protection for the traditional liberal civil freedoms---

freedom of speech, association and religious liberty prominent among them.

But these liberals seek a fuller realization of justice by means of political

36

bodies empowered to bring about distributions of wealth and power that

would be fair. They advocate this more expansive role for the state because

they conceive of justice in substantive, distributive terms. The deep

motivational difference between the two evolutionary stages is that, while

the new paradigm allows liberals to express a concern for substantive

equality, the old paradigm did not. The mission of theorists working in the

liberal tradition henceforth will be to elucidate and better understand the

modern, egalitarian view. They will extend the implications of this more

fully egalitarian paradigm to new domains and issue areas---justice within

the household or between cultural groups; rights to health care, wage floors

and educational opportunities; questions of justice between nations, global

material distribution and more.45

[[Of course, the authority figures of modern political philosophy will

cheerfully undertake the task of transmitting this tale about the history and

moral genesis of modern liberalism to their students and to the rising

generations of academic professionals. When teaching courses on “Liberal

Theories of Justice”, for example, the more intellectually responsible among

them may include several weeklong slices of Nozick’s libertarianism

(perhaps salted with an article or two by a libertarian such Loren Lomasky),

sandwiched between many weeks devoted to Rawls, Dworkin and the other

big slices of the modern liberal. In this way, students receive a carefully

scripted chance to evaluate for themselves the range of candidate liberal

views: modern liberalism or libertarianism.]]

37

[[There is something odd about this state of affairs. Or at least there is

something odd about if from the perspective of anyone who studies political

philosophy with the hope of achieving normative clarity regarding the

political choices facing actual liberal societies such as the United States,

Canada, England, or any of the Western European states. For while the

welfare state and social democratic institutional regimes of modern

liberalism find ready representatives in all of those countries, the highly

stylized property-absolutism of libertarianism finds significant

representatives in none.46 At the same time the actual rival to social

democratic parties in most of these countries---the ideal of commercial

society long associated with classical liberalism ---is provided no

representative on the philosophical menu. ]]

[[These asymmetries are striking in themselves. But they take on an amber

color when one notices that the institutional regime orientation that is put in

the most advantageous position by this lopsided description of the

philosophical candidates happens to be the favored orientation of most of the

academics themselves. At the same time, the institutional regime orientation

that is left off the menu----the capitalistic orientation of the political right---

is one that tends to be unpopular among the members of academic class. I

do not believe that advocates of modern liberalism intentionally present the

options in ways that advantage their own preferred ideology. I believe that

most political philosophers are perfectly sincere when they present

Nozickian libertarianism as the philosophically cleaned up version of the

more nuanced, and messy, classical liberal view defended by scholars since

Smith. Similarly, I believe that modern liberals are perfectly sincere when

38

they tell their students that normative political philosophy in the liberal

tradition was dead before Rawls published A Theory of Justice---even

though F.A. Hayek, arguably the most important thinker in the classical

liberal thinker since Smith, was publishing his main works of normative

political thought during precisely those supposedly barren decades.47]]

[[not intentional, effects are intellectually numbing and thus pernicious]]

For the graduate students especially, the transmission of the myth of modern

liberalism has already become a normal part of welcoming each to the

profession. It must be inculcated first (except in cases where its truth can

simply be assumed) so that each can be assigned to research projects

appropriate to role she or he will play as members of the profession. The

intellectual problems students will face in developing various aspects of the

modern liberal paradigm will not be easy. But at least they can take comfort

in knowing that the problems being laid before them are the important

ones.48

I remember how sad I felt when my children learned that there was no Santa

Claus. Something inside them died that day. Perhaps it was the capacity to

believe the unlikely with all their hearts, a simplifying ability to “make-

believe” that is in some ways the essence of childhood. In the coming

chapters, I intend to dismantle the myth of modern liberalism. I undertake

this task with no heaviness of heart, however. For despite the many

similarities between my children and their myths and my students and theirs,

I have also observed a dramatic asymmetry in the effect that myth-busting

39

has on each. When my students escape the easy clutches of the myth of

modern liberalism, something essential inside them—far from dying---

comes suddenly alive. What comes alive is their sense of themselves as

scholars---as truly independent thinkers standing on the edge of great and

urgent adventure about the nature of liberalism.

A moral commitment to social justice does not require an institutional

commitment to social democracy. Likewise, a rejection of the institutional

forms of social democracy does not imply a rejection of social justice.

[[People who are foundationally committed to social justice, may well

choose not to support political parties of the left. People who support

political parties of the right may do so out of an absolutely foundational

concern for social justice.]]49 The future of liberal theory, like its past, is far

more complex and hopeful than the myth of modern liberalism would lead

us to believe.

40

1 Consider the following exchange between me and my son Peter late one night when he was ten years old. Me: “Zzzzzzzzzzzzz.” Peter: “John, John, wake up!” Me: “Groan, Argh. What th…?” He: “I just figured something out.” Me: “Peter, it is flipping 3.00AM!” Peter: “Listen: Recess is the illusion of freedom.” Me: “Do you want your spanking now or in the morning?” 2 JT: these latter claims about which parties to support occur at the campaign level of what I call public policy. I like the bracketed bits because it tracks what people actually think; but there is danger this it confuses the conceptual points I am making…I should prob either cut or say more…. 3 Add brief data (esp that recent Chronicle article that, seeking to diminish, highlights the imbalance). 4 (Within the academy, it is truth we care about. To advocate a lowering of

selection standards out of concern for some other value—for example, the

value of intellectual diversity---would be intellectually irresponsible, or

worse.) 5 The feudal legal system gave the lords unbridled power over the serfs, with most of these powers designed to ensure that the rigid differentiations between hereditary classes would be preserved. For example, every serf was required to spend his life working on the manor where he had been born, unless his lord should send him to work elsewhere. To prevent any ambitions of social mobility within the manor, and for other reasons of control as well, serfs wishing to marry were legally bound first to seek approval of the match from their lord.The classic account of feudalism, with emphasis on feudalism as a social order, is Marc Bloch Feudal Society (1939). Tr. L.A. Manyon. Chicago: University of Chicago Press, 1961. For a discussion of feudalism from a critical theory perspective, see Elizabeth A.R. Brown (1974) “The Tyranny of Construct: Feudalism and Historians of Medieval Europe,” American Historical Review, 79. 6 JT: several charters were called Magna Carta---perhaps adjust text to show this, and get cites where appropriate. 7 Some of the legal particulars of the feudal system----primogeniture, entailment---had an evolutionary justification of their own: by holding together large estates, they provided bulwarks against invasion and thus provided stability. JT learn more about this----article by that GMU prof? 8 SUPPLEMENTAL NOTES ON LOCKE FROM PS82O SEMINAR: FOR USE HERE AND ALSO IN SECTION WHEN TALKING ABOUT LOCKES CONCERN FOR THE COMMON GOOD AND NOT JUST FORMAL EQUALITY/EFFICIENCY… Locke emphasis the moral status of people as being FREE and EQUAL (Laslett:269), or as he sometimes says, “equal and indendent” (273), or “free, equal and independent” (330) . by “equal” he mains OF EQUAL POLITICAL STATUS: equal “in respect of

41

Jurisdiction or Dominion one over another” (304!). Natural liberty: 283-4 POLITICAL POWER essentiall involve making laws for the regulating and preserving of property..” 268 and 361and all this only for the Publick Good” 268. RULE OF LAW; 284; better: 363. Pol Power as public: 276. Propery increases the common stock of all mankind: eg, 294. The amazingly complex, cooperative nature of bread production: Foreshadowing of Smith’s famous pin-making example: 298. Capital/$ magnifies the productivity of labor 299. The people accept the idea of material inequality: 302. Types of equality: 304. The LAW directs the free agent toward his proper interest; aims at the common good (305). Property rights are “subject to the Government and Dominion of that Commonwealth” 348. But govt cannot take people’s property arbitrarily: 360-1, esp 362. The people unite in society “for the mutual Preservation of the Lives, Liberties and Estates, which I call by the general name, Property” (350)—Dennis suggests, Locke seems to slip between two uses of the term Property: sometime a narrow ownership of things, sometimes this wider category. Note on this wider reading, if aim of state is to preserve property in this wider sense, then aim of state is not merely economic efficiency? “The great and chief end, therefore, of Mens uniting into commonwealths, and putting themselves under government, is the Preservation of their Property..” 350-1. 9 Get citatation from Locke’s First Treatise, critique of sir Robert filmer. Jt: ask Jeremy Waldron for his new paper on this. 10 See II.2.sect. 4: Locke Two Treatises of Government, tr Peter Laslett, Cambridge University Press, New York, 2005. For discussion, see eg Karen Vaughn John Locke’s Theory of Property Literature of Liberty: A Review of Contemporary Liberal Thought Spring 1980 5-37, p. 6. 11 12 Acorn quotation…. 13 Significantly, Locke adds: “he who appropriates land to himself by his labour, does not lessen but increase the common stock of mankind” II.37. [[[Citations here to articles by David Schmidtz, Jeremy Waldron and JT re Locke’s “Proviso”….]] 14 Locke writes: “…it is plain, that Men have agreed to disproportionate and unequal Possession of the Earth, they having by a tacit and voluntary consent found out a way, how a man may fairly possess more land than he himself can use the product of, by receiving in exchange for the overplus, Gold and Silver, which may be hoarded up without injury to any one….” II.50 15 get original citation, from Stanford Encyclopedia of Philosophy, entry on Locke. 16 The idea that political power should be understood as public in nature was a significant departure from the understanding of political power held by Engishmen during the feudal period. English kings often claimed to derive the legitimacy of their rule directly from God. On this model, political power was something the king held privately, though the will of God, rather than something entrusted to him directly by the people. See Sir Robert Filmer’s Patriarcha. 17 Locke consistenly emphasized that political power must never be exercised to advance the interest of any particular group of society. The legal order must seek only to advance the good of all, or what Locke called the public good: “Political Power then I take to be a Right of making laws with Penalties of Death, and consequently all less Penalties, for the

42

Regulating and Preserving of Property, and of employing the force of the Community, in the Execution of such Laws, and in the defense of the Common-wealth from Foreign Injury, and all this only for the Publick Good.” II.3. 18 The Wealth of Nations 687-688. 19 Theory of the Moral Sentiments, II.ii.1.10, Liberty Fund p. 82. Further: “In the race for wealth, and honours, and preferments, he may run as hard as he can, and strain every nerve and muscle, in order to outstrip his competitors. But if he should jostle, or throw down any of them, the indulgence of the spectators is entirely at an end. It is a violation of fair play, which they cannot admit of.” II.ii.2.2 LF 83. 20 Adam Smith spoke of ‘the liberal plan of equality, liberty and justice.’ [[get primary citation, quoted in Hayek “Liberalism” p. 2—online, reprinted as chapt 9 of New Studies]]. 21 JT THINK THIS THROUGH: WHATS THE BASIC IDEA HERE?: THAT THE INEQUALITIES THAT RESULT FROM FORMAL LEGAL EQUALITY WILL BE SMALLER (OR LESS PERMANENT?) THAN THOSE, EG, THAT WRE ENFORCED BY THE OLD FEUDAL STATUS-BASED SYSTEM? OR, IS THE IDEA THAT THE BASIS OF SOCIAL INEQUALITIES WILL NOW BE DIFFERENT?: INSTEAD OF HEREDITARY FEATURES, WEALTH/POWER WILL BE THE RESULT OF TALENT/HARD WORK/EDUCATION/?LUCK……NEED TO SORT THIS OUT IN LIGHT OF THE RAWLSIAN REJECTION OF THE SYSTEM OF NATURAL LIBERTY AS UNJUST…. MY IDEA: THE RAWLSY DEBATE ABOUT WHETHER OR NOT INEQUALITES THAT ARISE UNDER RIVAL POLITICAL REGIME TYPES ARE “MORALLY ARBITRARY” IS A MERE EPIPHENOMENON (IF NOT A RED HERRING). WHAT MATTERS IS BRINGING ABOUT THE SOCIAL CONDITIONS THAT WILL ALLOW CITIZENS TO ENCOUNTER ONE ANOTHER AS BEINGS WHO ARE EQUALLY FREE…..CLEARLY, I NEED TO DO MORE WORK TO SET OUT PRECISELY WHAT THOSE CONDITIONS MIGHT BE, AND THEN ANALYSIS THE LIKELIHOOD OF RIVAL LIBERAL REGIME TYPES BEING ABLE TO BRING SUCH CONDITIONS ABOUT…..(NOTE: NONIDEAL THEORY CONSIDERATIONS). 22 Tomasi, “Individual Rights and Community Virtues”, Ethics, 1991. 23 *THE INDUSTRIAL REVOLUTION: 1760-1830 T. S. ASHTON. (p. 4). See generally essays in Hayek ed. Capitalism and the Historians.

24 Add bits from Rasmussen, The Problems and Promise of Commercial Society: Adam Smith’s Response to Rousseau. 25 “It has to be granted from the first that the more violent the passions, the more necessary are the Laws to contain them; but…it would still be worth enquiring whether these disorders did not arise together with the Laws themselves; for then, even if they could repress them, it is surely the very least to expect of them that they put a stop to an evil that would not exist without them.” Discourse on the Origins of Inequality, Part 1, sect 41, p. 155. Gourevitch.

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26 Second Discourse Part II, sect. 58 ed Gourevitch p. 188. 27 On this distinction between British liberalism with its evolutionary conception of rationality and continental liberalism with its emphasis on constructivist reason, see Hayek “Liberalism” Chapter 9 in New Studies in Philosophy, Politics and Economics and the History of Ideas (Routledge). 119-151. Regarding tendency of continental liberals to that of liberty in terms of the political self-determination of groups, Hayek writes: “This led to an early association and almost identification of the Continental movement with a movement for democracy, which is concerned with a different problem from that which was the chief concern of the liberal tradition of the British type” (2of3). Also, it is interesting to note that Hayek describes Locke as a mixed figure, showing elements of both traditions. The preceding two paragraphs borrow from Hayek’s superb discussion of these issues. 28 Jt: insert quotation from Manifesto: that instead of many classes, the structure of status-hierarchy was now simplified into two great contending classes, property-owners and wage-laborers…. 29 quotation from manifesto: that instead of many classes, the structure of status-hierarchy was now simplified into two great contending classes, owners and workers…. 30 1888ish. Get original cite. (I found in book review in the Guardian of a book on TH Green’s Theory of Positive Freedom). 31 [[In the eyes of many citizens in England and the United States, the

economic depression of the early 20th century provided a practical

demonstration of the inadequacy of the original liberal program of limited

government. A cornerstone of the old system was a reading of the United

States Constitution, and its relation to state constitutions, that effectively

gave great protection to the economic freedoms of individuals. This tradition

understood American law as requiring the recognition of entrenched rights

of property ownership and wide individual freedom of contract. (Epstein:

How Progressive Rewrote the Constitution] It required that the court apply a

high level of scrutiny to legislative actions that might limit or curtail the

economic liberties of individual citizens.

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For many, however, the Wall Street crash of 1929 and its aftermath

demonstrated the moral and economic untenability of the commercial

interpretation of liberal society. [Holmes’s shot at Spencer in his Lochner

dissent]. Under the influence of Franklin Roosevelt and his advisors, a new

understanding of the American regime itself was being born. [Sunstein: The

Second Bill of Rights]. The changed economic and social conditions

wrought by industrialization required an equally great change in our

understanding of the Constitution, and so in our understanding of the proper

range and purpose of governmental activity itself. The disorder and waste of

“flux” would be replaced with the efficiency and rationality of planning. A

concern for substantive equality required that the state in general---and

legislative bodies in particular---be allowed a more direct and active role in

managing the economy, and social life as a whole, in pursuit of the common

good. [[something like this (but more balanced re the debate): Economic

historians continue to debate the effects of many New Deal measures. The

strategy of destroying crops and livestock as a price support, and the

decision to impose wage floors during a period of high unemployment, are

particular controversial. Whether the New Deal measures---taken as a

whole---sped up the recovery, or slowed it, those measures clearly

responded to the demand of citizens that somebody do something.]] The

commercial republic was increasingly supplanted by a progressive regime, a

regime that called for direct governmental planning in pursuit of social

justice.]]

32 For discussion of Roosevelt, see Sunstein The Second Bill of Rights. 33 An important point from Sam Freeman to fit in somewhere (later perhaps?): “The combination of liberalism and democratic government is a nineteenth-century

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accomplishment. It is not found in Locke or Kant, in the classical liberalism of Hume, or Smith, or Constant; Bentham and the classical utilitarians only gradually came to accept it” (Sam Freeman, “Illiberal Libertarians”, p. 123. I can use this to make my diagnostic point about how democratic theory has come come to eclipse the whole of status quo liberal thought in our time…eg remarks by Dave Estlund and Corey Brettschneider to me that, roughly, “liberal theory is democratic theory”….an assertion that assumes the Myth-generated ascendancy of High Liberalism…. 34 This claim that normative political thinking in the liberal tradition was dead before Rawls is a standard feature of the myth of modern liberalism (see Pettit formulation). It is an embarrassing, though telling fact, however that Hayek, arguably the greatest thinker in the classical liberal tradition since Smith, was producing his greatest work in exactly those “dead” decades. 35 Rawls notes that while the institutional regime he most prefers---property-owning democracy is quite distinct from Marx’s ideal of a fully communist society, nonetheless “the idea of property-owning democracy tries to meet legitimate expectations of the socialist tradition” (Justice as Fairness, 177). 36 RE critics of desert, get citations to old P&PA article by George Sher, and recent PT article by Schmidtz; re welfare-state capitalism, search out citations from Josh Cohen and Bill Galston (?). 37 As Rawls says, “the idea of property-owning democracy tries to meet the legitimate objections of the socialist tradition….” (JasF 177). {what are those “legitimate objections in Rawls’s view?: that lib is purely formal, more on 177}. 38 Samuel Fleischacker A Short History of Distributive Justice (Harvard: Cambridge MA, 2004) 121. Similarly, Jeffrey Paul describes Nozickian libertarianism as the “recent successor of Lockean liberalism,” Reading Nozick, ed. Jeffrey Paul (Totowa, NJ: Rowman and Littlefield, 1981), p. 4. 39 (Contemporary Political Philosophy1990, 160) “Classical liberalism” is sometimes distinguished from “libertarianism” on the basis of the uncompromising priority given to property rights on the latter, but not the former view. Kymlicka does not make this distinction here. By “libertarianism”, he means to include the “classical liberal” view that we call Low Liberalism. Samuel Freeman carefully distinguishes between classical liberalism and libertarianism. According to Freeman, major proponents of classical liberalism include Adam Smith and other members of what some call the Scottish Enlightenment, as well as more recent thinkers such as James Buchanan and Freidrich Hayek. Classical liberals advocate the doctrine of laissez-faire. They think any redistributive role for the state should be strictly limited to occasions when such actions are required to preserve the market system itself. Freeman describes libertarianism, exemplified for example in the writings of Robert Nozick, as a more extreme view. It allows for the full alienability of peoples rights and liberties—so that, on Nozicks view, citizens have rights even to sell themselves into slavery with one another. (So absolute and uncompromising is the libertarian commitment to rights of private ownership and contract, argues Freeman, that is it does not even count as a liberal view.) 40 Get original citation to Freeman’s P&PA piece. Note also that Freeman, at least, carefully distinguishes libertarians from classical liberals (Note, my schema sees the

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Smith-Hayek-Friedman line as one interpretation of classical liberalism, and Nozick-Mack libertarianism as a rival interpretation of classical liberalism). 41 Jt: sharpen this formulation: not clear that “material well-being” is the value being tracked here…. 42 Note here or in next chapter: Freeman distinguishes between “classical liberalism” and “libertarianism”—perhaps save this point till I discuss my typology, according to which libertarianism is one interpretation of classical liberalism, and jt’s constitutional capitalism is a rival interpretation…. 43 “Rawls and Liberalism” Cambridge Companion to Rawls, ed. Samuel Freeman, p.63. 44 Nagel 66. 45 Get cites. Ask Keith and/or Carlos to help fill in here: LOTS of citations, to major figures in high liberal paradigm over past thirty years. 46 E.g., even the Libertarian Party in US rejects the idea that economic freedoms should be treated as moral absolutes. 47 Plug in dates----esp. Constitution of Liberty (1960), and Law, Legislation and Liberty v. 1 (1973). Perhaps quote line from Newsweek about the 20th century being “Hayek’s century.” But also set up my later critique: that Hayek, unlike Rawls, worked out his normative view in a way that unfortunately mixed the identificatory level of pol philosophy with the advocacy level of pol theory. 48 In 1990, while I was a graduate student, I remember what a hot topic soviet studies was (get data: research projects on soviet arms industry and domestic policies by junior faculty at Harvard winning big grants---check with jeff Anderson). The academic fields of comparative politics, international political economy and security studies had become cozy, self-reinforcing professional fiefdoms, almost wholly disconnected from empirical reality. As the myth of modern liberalism tightens its grip on the profession, has scholarship in the fields of political philosophy and political theory similarly become disconnected from normative reality? 49 JT, again: the former set of claims is made at the level of regime advocacy that I call political theory; the bracketed set occurs at the campaign level that I call public policy. Probably need to clarify or cut.