Coercion, ownership, and the redistributive state: Justificatory liberalism's classical tilt

Social Philosophy and Policy

Volumn 27, Issue 1, 2010, Pages 233-275

  Gaus, Gerald ^a  

^a UNIVERSITY OF ARIZONA   (United States)

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EID: 77951915209     PISSN: 02650525     EISSN: 14716437     Source Type: Journal    
DOI: 10.1017/S0265052509990100     Document Type: Article

References (118)

1. Christopher J. Eberle applies this term to a family of liberal views I describe in the text, which stress that the basic requirement of a just and legitimate state is that it can be justified to all reasonable citizens. See Eberle, Religious Conviction in Liberal Politics (Cambridge: Cambridge University Press, 2002), 11-13.
2. See David Hume, "Of the Original Contract," in his Essays Moral, Political, and Literary (Oxford: Oxford University Press, 1963), 452-473
3. See Immanuel Kant, The Metaphysical Elements of Justice, 2d ed., trans. John Ladd (Indianapolis: Hackett, 1999), secs. 42-43 (pp. 114-17), sec. 50 (p. 146).
4. John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Belknap Press of Harvard University Press, 1999), p. 16 (p. 17 of the original edition).
5. Ibid. John Rawls, A Theory of Justice, 1999 p. 16 .
6. John Locke, Second Treatise of Government, in Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1960), sec. 21.
7. Immanuel Kant, Foundations of the Metaphysics of Morals, ed. and trans. Lewis White Beck (Indianapolis: Bobbs-Merrill, 1959), 52 [Akademie ed., 433-34].
8. John Rawls, "Justice as Fairness," in Samuel Freeman, ed., John Rawls: Collected Papers (Cambridge, MA: Harvard University Press, 1999), 55.
9. Eberle, Religious Conviction in Liberal Politics, 54 (emphasis in the original).
10. I explore these dimensions in more detail in my essay "The Idea and Ideal of Capitalism," in Tom Beauchamp and George Brenkert, eds., The Oxford Handbook of Business Ethics (Oxford: Oxford University Press, 2009).
11. The classic work on the economic policy of classical liberal political economy is Lionel Robbins, The Theory of Economic Policy in English Classical Political Economy (London: Macmillan, 1961).
12. Perhaps the most sophisticated classical analysis of the functions of government is Book V of John Stuart Mill, The Principles of Political Economy (1848)
13. in J. M. Robson, ed., The CollectedWorks of John Stuart Mill (Toronto: University of Toronto Press, 1977), vol.3.
14. See also my essay "Public and Private Interests in Liberal Political Economy, Old and New," in S. I. Benn and G. F. Gaus, eds., Public and Private in Social Life (New York: St. Martin's, 1983), 192-193
15. It is thus unfortunate that so many have viewed Robert Nozick's somewhat doctrinaire defense of the "night-watchman state" as definitive of the classical liberal tradition. See his Anarchy, State, and Utopia (New York: Basic Books, 1974), 25-27.
16. On the relation between libertarianism and classical liberalism, see Eric Mack and Gerald Gaus, "Classical Liberalism and Libertarianism: The Liberty Tradition," in Gerald F. Gaus and Chandran Kukathas, eds., Handbook of Political Theory (London: Sage Publications, 2004), 115-130
17. See Rawls, A Theory of Justice, rev. ed., 197ff.
18. Rawls, A Theory of Justice Ibid., 242-51.
19. Rawls also believes that a just society would seek reasonable ways to limit wasteful forms of advertising: "the funds now devoted to advertising can be released for investment or for other useful social ends." John Rawls, Political Liberalism (New York: Columbia University Press, 1996), 365.
20. John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 48;
21. Samuel Freeman, "Illiberal Libertarians: Why Libertarianism Is Not a Liberal View," Philosophy and Public Affairs 30 (2001): 105-151
22. Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: Harvard University Press, 2001), 135ff.
23. Ibid.,Rawls, Justice as Fairness: A Restatement 138. 2001
24. Gerald F. Gaus, "On Justifying the Moral Rights of the Moderns: A Case of Old Wine in New Bottles," Social Philosophy and Policy 24, no.1 (2007): 84-119.
25. Rawls was greatly influenced here by J. E. Meade, Efficiency, Equality, and the Ownership of Property (London: Allen and Unwin, 1964), chap. 5;
26. and Richard Krouse and Michael McPherson, "Capitalism, 'Property-Owning Democracy,' and the Welfare State," in Amy Gutmann, ed., Democracy and the Welfare State (Princeton, NJ: Princeton University Press, 1988).
27. For a discussion of possible policies of such a system, see Richard Dagger, "Neo-Republicanism and the Civic Economy," Politics, Philosophy, and Economics 5 (2006): 151-173
28. Joel Feinberg, Harm to Others (New York: Oxford University Press, 1984), 9.
29. Stanley Benn, A Theory of Freedom (Cambridge: Cambridge University Press, 1988), 87.
30. Rawls, Justice as Fairness, 44.
31. This is not to say that the presumption in favor of liberty does not itself have to be argued for. See my Value and Justification (Cambridge: Cambridge University Press, 1990), 379ff.
32. Benn, A Theory of Freedom, 87.
33. I consider such a presumption in some detail in Value and Justification, 381-386
34. Loren E. Lomasky and I argue this point in more detail in "Are Property Rights Problematic?" The Monist 73 (October, 1990): 483-503.
35. Rawls, Justice as Fairness, 112.
36. Rainer Frost, "Political Liberty: Integrating Five Conceptions of Autonomy," in John Christman and Joel Anderson, eds., Autonomy and the Challenges to Liberalism (Cambridge: Cambridge University Press, 2005), 240 n. 24.
37. The way in which morality involves claims to authority over others is a central theme of Stephen Darwall, The Second-Person Standpoint: Morality, Respect, and Accountability (Cambridge, MA: Harvard University Press, 2006).
38. Kant, The Metaphysical Elements of Justice, 115-16 [Akademie ed., 311-13].
39. See also the "Translator's Introduction," xxxv-xxxix.
40. For an excellent survey, see Scott Anderson's entry on "Coercion" in The Stanford Encyclopedia of Philosophy (Spring 2006 edition), ed. Edward N. Zalta, http://plato. stanford.edu/archives/spr2006/ entries/coercion/.
41. This is not to say that coercion against noncitizens does not require justification; it simply falls outside the scope of the Political Liberty Principle, which specifies a necessary, not a sufficient, condition for justified coercion.
42. See Alan Wertheimer, Coercion (Princeton, NJ: Princeton University Press, 1987), 277ff.
43. I defend this interpretation of Hobbes in Value and Justification, 275ff.
44. Kant's view is complex; though we have private rights in the state of nature, because there is no impartial judge about their contours, the state of nature also is characterized by an absence of public claims of justice; the idea of the social contract is to establish public justice and rights. Kant, Metaphysical Elements of Justice, 115-116 [Akademie ed., 312].
45. Ibid., Kant, Metaphysical Elements of Justice, 45 [Akademie ed., 249].
46. To be sure, there may be an intelligible sense in which I still might be said to coerce you: "If you don't do what I want, I will pick up your possession the next time you put it down!" Again, though, a general account of coercion (if one is to be had) is not my aim.
47. The Public Justification Principle supposes that a justified law must be genuinely authoritative: it is endorsed by all members of the public as binding-as generating obligations to obey. A bona fide law is not simply an act of state coercion, but an act of state authority, and so binds citizens. This is the legal expression of Kant's notion of the realm of ends, in which recognizing the law's authority over us is consistent with each person's acting on her own reasons. Contemporary political philosophy is deeply skeptical that the law generally has justified authority to direct citizens' acts. To many, the most the law could hope to achieve is a certain legitimacy, in the sense that the laws of the state are morally permissible acts of coercion, but do not in general bind citizens to obey. Thus, in place of the Public Justification Principle, we might adopt a Weak Public Justification Principle: "L is a justified coercive law only if each and every member of the public P has conclusive reason(s) R to accept that coercive acts enforcing L are morally permissible." The Weak Public Justification Principle does not suppose that laws are acts of self-legislation which all citizens have reason to obey, but simply that force and coercion by the state are permissible-though resisting them may be permissible too. For many, that is enough-indeed, the most that can be hoped for. I am dubious. The concept of law implied by this view renders laws too much like coercive demands in Hobbes's state of nature: they are not wrong, but neither is it in principle wrong to ignore them, or even fight back. However, I leave this matter unresolved in this essay. If one is convinced that the most we can hope for is such "legitimacy," one can substitute the weak version of the Public Justification Principle in what follows: the essence of the analysis is not affected.
48. See George Klosko, "Reasonable Rejection and Neutrality of Justification," in Steven Wall and George Klosko, eds., Perfectionism and Neutrality: Essays in Liberal Theory (Lanham, MD: Rowman and Littlefield, 2003), 178.
49. Rawls adds: "within the framework of free institutions of a constitutional regime" (Political Liberalism, xviii).
50. Rawls, A Theory of Justice, rev. ed., 16.
51. "Their procedure . . . is to let each person propose principles . . ." (Rawls, "Justice as Fairness," 53).
52. Rawls, Political Liberalism, 224ff.
53. Rawls, A Theory of Justice, rev. ed., 121.
54. The deliberative problem supposes that we can identify laws that regulate an "area" of social life, or as Rawls termed it, a "practice" ("Justice as Fairness," 47). I set aside for now how to identify these areas in any precise way.
55. For the informal, social procedure, see Gaus, "On Justifying the Moral Rights of the Moderns";
56. for the formal, political procedure, see Gerald Gaus, Justificatory Liberalism (New York: Oxford University Press, 1996), part III.
57. Rawls, Political Liberalism, 338; Rawls, A Theory of Justice, rev. ed., 242.
58. Rawls, A Theory of Justice, rev. ed., 239.
59. Adapted from James D. Gwartney and Robert Lawson, with Seth Norton, Economic Freedom of the World: 2008 Annual Report (Economic Freedom Network, 2008), p. 21. Digital copy available from www.fraserinstitute.org; www.freetheworld.com. Used with permission of the Fraser Institute.
60. For information on Freedom House, see www.freedomhouse.org.
61. Sources: Freedom House, "Freedom in the World, 2008: Subscores (Civil Rights)," http://www.freedomhouse.org/template.cfm?page= 414&year=2008
62. Gwartney, Lawson, and Norton, Economic Freedom of the World: 2008 Annual Report; Heritage Foundation, "Index of Economic Freedom," 2008 data, http://www.heritage.org/Index/. Used with permission of Freedom House, the Fraser Institute, and the Heritage Foundation. Note that the scores in columns (2) and (4) are on a scale from 100 (highest protection of property rights/most overall economic freedom) to 0 (lowest protection/least economic freedom).
63. Figure 2 is adapted from Gwartney, Lawson, and Norton, Economic Freedom of theWorld: 2008 Annual Report, p. 21. Digital copy available from www.fraserinstitute.org; www. freetheworld.com. Used with permission of the Fraser Institute.
64. The data in table 3 are from Freedom House, "Freedom in the World, 2008: Subscores (Civil Rights)," http://www. freedomhouse.org/template.cfm? page=414&year=2008;
65. and Heritage Foundation, "Index of Economic Freedom," 2008 data. Used with permission of Freedom House and the Heritage Foundation.
66. Rawls, Justice as Fairness, 139.
67. Rawls, Political Liberalism, 329.
68. Sources: Jean-Marc Burniaux, Flavio Padrini, and Nicola Brandt, Labour Market Performance, Income Inequality, and Poverty in OECD Countries, OECD Economics Department Working Paper No.500 (ECO/WKP, 2006), 44;
69. Freedom House "Freedom in the World 2008: Subscores (Political Rights)," http://www.freedomhouse.org/template.cfm?page=414&year=2008.
70. Daniela Sonedda, "Wealth Inequality, Income Redistribution, and Growth in Fifteen OECD Countries," Royal Economic Society Annual Conference (2003), Royal Economic Society, 21; http://ideas.repec.org/e/pso158.html.
71. Sources: Markus Jäntti and Eva Sierminska, Survey Estimates of Wealth Holdings in OECD Countries: Evidence on the Level and Distribution (United Nations University, World Institute for Development Economics Research, 2007); Freedom House, "Freedom in the World, 2008: Subscores (Political Rights)," http://www.freedomhouse.org/template.cfm? page=414&year=2008.
72. Rawls, Justice as Fairness, 137-138
73. Even less compelling is the claim that inequalities in the value of political rights are simply allowed under capitalism: the question is what economic systems are conducive to a free society. Cf. Rawls, Justice as Fairness, 139.
74. For the relation of economic freedom and income per capita growth, see James D. Gwartney and Robert Lawson, with Seth Norton, Economic Freedom of theWorld: 2008 Annual Report, p. 18.
75. Economic Freedom Network. Digital copy available fromwww.fraserinstitute. org, www.freetheworld.com.
76. Liam Murphy and Thomas Nagel, The Myth of Ownership: Taxes and Justice (New York: Oxford University Press, 2002), 32-33; emphasis added.
77. Kant, Metaphysical Elements of Justice, 46ff [Akademie ed., 250ff].
78. Ibid., Kant, Metaphysical Elements of Justice 33, 41 [Akademie ed., 233, 238].
79. See also Hillel Steiner, "Kant, Property, and the General Will," in Norman Geras and Robert Walker, eds., The Enlightenment and Modernity (New York: St. Martin's, 2000), 71ff.
80. This is certainly Mill's view in his discussion of private property in Book II of Principles of Political Economy.
81. Robert Audi further explicates this idea of degrees of coercion in his Religious Commitment and Secular Reason (Cambridge: Cambridge University Press, 2000), 87-88.
82. Joel Feinberg, "The Interest of Liberty in the Scales," in his Rights, Justice, and the Bounds of Liberty (Princeton, NJ: Princeton University Press, 1980), 36.
83. F. A. Hayek, The Constitution of Liberty (London: Routledge, 1960), 133.
84. Hayek actually seems to go so far as to say that you are not coerced at all in this case. Ibid., 141. 1960
85. Benn, A Theory of Freedom, 144.
86. Jan Narveson, The Libertarian Idea (Philadelphia, PA: Temple University Press, 1988), 66.
87. Jan Narveson, The Libertarian Idea (Philadelphia, PA: Temple University Press, 1988), 66. Ibid.
88. See, for example, Loren E. Lomasky, Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987), 132.
89. As I have tried to show in "Property, Rights, and Freedom," Social Philosophy and Policy 11, no.2 (1994): 209-240
90. Eric Mack, "The Natural Right of Property," elsewhere in this volume.
91. Will Wilkinson, The Fly Bottle, http://www.willwilkinson.net/flybottle/ 2008/05/30/please-discuss/(accessed July 28, 2008).
92. Wilkinson is suggesting a topic for discussion, and the claim is based on theories of freedom commonly held by classical liberals.
93. Ted F. Brown (Assistant for the Criminal Division of the IRS, 1998)
94. quoted in Liezl Walker, "The Deterrent Value of Imposing Prison Sentences for Tax Crimes," New England Journal of Criminal and Civil Confinement 26 (Winter 2000): 1.
95. "Understanding the Tax Gap" (FS-2005-2014, March 2005), Internal Revenue Service, http://www.irs.gov/newsroom/article/0,id=137246,00. html (accessed July 28, 2008).
96. Walker, "The Deterrent Value of Imposing Prison Sentences for Tax Crimes," 6.
97. Ibid., Walker. The Deterrent Value of Imposing Prison Sentences for Tax Crimes 7.
98. Feinberg, "The Interest of Liberty in the Scales," 36.
99. It might be objected that this must be wrong: whereas the criminal law seeks to render options less eligible in order to deter, an effective tax law (putting aside sin taxes) must hope that citizens continue with the activity in order for revenue to be generated. The will of the state is not for citizens to refrain, but to persist, so they are not being coerced in Hayek's sense. Coercion thus may seem to require an intention to deter people from the act, but that is exactly what the state does not seek to do with taxation-and that is why the state does not close off options, but only makes them more difficult to pursue. One who threatens, however, need not wish to deter, for often enough those making the threat hope that the target will not give in to the threat. In 1918, for example, Germany issued an ultimatum to the neutral Dutch, demanding the right to ship materials across their territory, and threatening the Netherlands and Dutch ships in its colonies if the demand was not met. At the time, this threat was seen by many observers as a pretext; they believed that Germany hoped the Netherlands would not give in to the threat but would instead enter the war. What Germany's intentions were did not nullify the coercive threat. See The New York Times, April 23 and 28, 1918.
100. By comparing only flat-tax states, I have greatly simplified the analysis. With variablerate taxation, what constitutes a high-tax country depends on the combined score on several dimensions. Consider a study of fifteen OECD countries from the period of 1974 to 1997 (Australia, Belgium, Canada, Denmark, Finland, France, Germany, Italy, Japan, the Netherlands, Norway, Spain, Sweden, the United Kingdom, and the United States). We might define a high-tax country as one that has highly progressive rates and high marginal tax rates. On that definition, the high-tax states are Sweden, the United States, Finland, the United Kingdom, the Netherlands, and Belgium; the low-tax states are Spain, Australia, Norway, Germany, Japan, and Italy. If we define a high-tax state as one that has a high average personal tax rate and a high degree of progressivity, the high-tax states are Belgium, Canada, and France; Germany, Norway, and Denmark are low on both dimensions. Sonedda, "Wealth Inequality, Income Redistribution, and Growth in Fifteen OECD Countries," 19-20.
101. See also my On Politics, Philosophy, and Economics (Belmont, CA: Wadsworth, 2007), chap. 2.
102. This is merely for purposes of exposition; a cardinal analysis is not required.
103. All this was implicit in our original ordinalist idea of an eligible set. Alaw is only in the eligible set if each member of the public believes its benefits outweigh its costs compared to a condition of liberty. If a member of the public holds that a law has negative net costs, he has no reason to accept it. And one of the costs to be considered is the cost of coercion: if the law is really in the eligible set, the costs of coercion have been conclusively justified to all.
104. I am grateful to Paul Gomberg for this point.
105. See Andrew Lister, "Public Justification and the Limits of State Action," Politics, Philosophy, and Economics, forthcoming. I respond to Lister's arguments in the same issue of the journal.
106. Mill, The Principles of Political Economy, 7th ed., 938 (Book X, chap. xi, sec. 2).
107. See for example Mill's discussion of the proper bounds of moral sanctions in Auguste Comte and Positivism, in Mill, Collected Works, vol.5, 337ff.
108. Mill, The Principles of Political Economy, 937 (Book X, chap. xi, sec. 2).
109. We must keep in mind that the members of the public deliberate about whether to accept the law as the basis for justified claims on each other. To say that there is "no law" is not to say that there is no social practice that allows us to coordinate our actions, but that there is no law that grounds justified claims on each other. Consequently, to say that there is "no law" is not to say that there will be chaos.
110. Rawls, Political Liberalism, 253.
111. I try to show just how broad this range is in my essay "Controversial Values and State Neutrality in On Liberty," in C. L. Ten, ed., Mill's "On Liberty": A Critical Guide (Cambridge: Cambridge University Press, 2009).
112. Rawls suggests that one way to avoid the resulting indeterminacy is "to choose some social position by reference to which the pattern of expectations as a whole is to be judged." From this point on, the focus becomes the representative person of the least advantaged social position. Rawls, "Distributive Justice," in Freeman, ed., John Rawls: Collected Papers, 137.
113. "The restrictions on particular information in the original position are, then, of fundamental importance. Without them we would not be able to work out any definite theory of justice at all." Rawls, A Theory of Justice, rev. ed., 121.
114. Ibid. Rawls, A Theory of Justice. 121
115. See, for example, Jonathan Quong, "Three Disputes about Public Reason," www. publicreason.net/wp-content/PPPS/Fall2008/JQuong1.pdf.
116. See also Lister, "Public Justification and the Limits of State Action," and my response to Lister's essay.
117. Immanuel Kant, Critique of Judgment, trans.Werner S. Pluhar (Indianapolis, IN: Hackett, 1987), 160 (sec. 40).
118. See also Kant, "What Is Enlightenment?" in Hans Reiss, ed., Kant's PoliticalWritings, trans. H. B. Nisbett (Cambridge: Cambridge University Press, 1977), 54-60.