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COERCION, OWNERSHIP, AND THE REDISTRIBUTIVE STATE: JUSTIFICATORY LIBERALISM'S CLASSICAL TILT

Published online by Cambridge University Press:  04 January 2010

Gerald Gaus
Affiliation:
Philosophy, University of Arizona

Abstract

Justificatory liberalism is liberal in an abstract and foundational sense: it respects each as free and equal, and so insists that coercive laws must be justified to all members of the public. In this essay I consider how this fundamental liberal principle relates to disputes within the liberal tradition on “the extent of the state.” It is widely thought today that this core liberal principle of respect requires that the state regulates the distribution of resources or well-being to conform to principles of fairness, that all citizens be assured of employment and health care, that no one be burdened by mere brute bad luck, and that citizens' economic activities must be regulated to insure that they do not endanger the “fair value” of rights to determine political outcomes. I argue in this essay: (1) a large family of liberal views are consistent with the justificatory liberals project, from classical to egalitarian formulations (but not socialist ones); (2) overall, the justificatory project tilts in the direction of classical formulations.

Type
Research Article
Copyright
Copyright © Social Philosophy and Policy Foundation 2010

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References

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), 1113CrossRefGoogle Scholar.

2 See Hume, David, “Of the Original Contract,” in his Essays Moral, Political, and Literary (Oxford: Oxford University Press, 1963), 452–73Google Scholar.

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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 Beauchamp, Tom and Brenkert, George, eds., The Oxford Handbook of Business Ethics (Oxford: Oxford University Press, 2009)Google Scholar.

11 The classic work on the economic policy of classical liberal political economy is Robbins, Lionel, The Theory of Economic Policy in English Classical Political Economy (London: Macmillan, 1961)Google Scholar. Perhaps the most sophisticated classical analysis of the functions of government is Book V of Mill, John Stuart, The Principles of Political Economy (1848), in Robson, J. M., ed., The Collected Works of John Stuart Mill (Toronto: University of Toronto Press, 1977), vol. 3Google Scholar. See also my essay “Public and Private Interests in Liberal Political Economy, Old and New,” in Benn, S. I. and Gaus, G. F., eds., Public and Private in Social Life (New York: St. Martin's, 1983), 192–93Google Scholar.

12 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), 2527Google Scholar. On the relation between libertarianism and classical liberalism, see Mack, Eric and Gaus, Gerald, “Classical Liberalism and Libertarianism: The Liberty Tradition,” in Gaus, Gerald F. and Kukathas, Chandran, eds., Handbook of Political Theory (London: Sage Publications, 2004), 115–30CrossRefGoogle Scholar.

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25 I consider such a presumption in some detail in Value and Justification, 381–86.

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29 The way in which morality involves claims to authority over others is a central theme of Darwall, Stephen, The Second-Person Standpoint: Morality, Respect, and Accountability (Cambridge, MA: Harvard University Press, 2006)Google Scholar.

30 Kant, The Metaphysical Elements of Justice, 115–16 [Akademie ed., 311–13]. See also the “Translator's Introduction,” xxxv–xxxix.

31 For an excellent survey, see Anderson, Scott's entry on “Coercion” in The Stanford Encyclopedia of Philosophy (Spring 2006 edition), ed. Zalta, Edward N., http://plato.stanford.edu/archives/spr2006/entries/coercion/Google Scholar.

32 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.

33 See Wertheimer, Alan, Coercion (Princeton, NJ: Princeton University Press, 1987), 277ff.Google Scholar

34 I defend this interpretation of Hobbes in Value and Justification, 275ff.

35 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, 115–16 [Akademie ed., 312].

36 Ibid., 45 [Akademie ed., 249].

37 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.

38 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.

39 See Klosko, George, “Reasonable Rejection and Neutrality of Justification,” in Wall, Steven and Klosko, George, eds., Perfectionism and Neutrality: Essays in Liberal Theory (Lanham, MD: Rowman and Littlefield, 2003), 178Google Scholar.

40 Rawls adds: “within the framework of free institutions of a constitutional regime” (Political Liberalism, xviii).

41 Rawls, A Theory of Justice, rev. ed., 16.

42 “Their procedure … is to let each person propose principles …” (Rawls, “Justice as Fairness,” 53).

43 Rawls, Political Liberalism, 224ff.

44 Rawls, A Theory of Justice, rev. ed., 121.

45 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.

46 For the informal, social procedure, see Gaus, “On Justifying the Moral Rights of the Moderns”; for the formal, political procedure, see Gaus, Gerald, Justificatory Liberalism (New York: Oxford University Press, 1996), part IIIGoogle Scholar.

47 Rawls, Political Liberalism, 338; Rawls, A Theory of Justice, rev. ed., 242.

48 Rawls, A Theory of Justice, rev. ed., 239.

49 Adapted from Gwartney, James D. and Lawson, Robert, Norton, with Seth, Economic Freedom of the World: 2008 Annual Report (Economic Freedom Network, 2008), p. 21Google Scholar. Digital copy available from http://www.fraserinstitute.org; http://www.freetheworld.com. Used with permission of the Fraser Institute. For information on Freedom House, see http://www.freedomhouse.org.

50 Sources: Freedom House, “Freedom in the World, 2008: Subscores (Civil Rights),” http://www.freedomhouse.org/template.cfm?page=414&year=2008Google Scholar; 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/Google Scholar. 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).

51 Figure 2 is adapted from Gwartney, , Lawson, , and Norton, , Economic Freedom of the World: 2008 Annual Report, p. 21Google Scholar. Digital copy available from http://www.fraserinstitute.org; http://www.freetheworld.com. Used with permission of the Fraser Institute. 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=2008Google Scholar; and Heritage Foundation, “Index of Economic Freedom,” 2008 data. Used with permission of Freedom House and the Heritage Foundation.

52 Rawls, Justice as Fairness, 139.

53 Rawls, Political Liberalism, 329.

54 Sources: Burniaux, Jean-Marc, Padrini, Flavio, and Brandt, Nicola, Labour Market Performance, Income Inequality, and Poverty in OECD Countries, OECD Economics Department Working Paper No. 500 (ECO/WKP, 2006), 44Google Scholar; Freedom House, “Freedom in the World, 2008: Subscores (Political Rights),” http://www.freedomhouse.org/template.cfm?page=414&year=2008Google Scholar.

55 Sonedda, Daniela, “Wealth Inequality, Income Redistribution, and Growth in Fifteen OECD Countries,” Royal Economic Society Annual Conference (2003), Royal Economic Society, 21Google Scholar; http://ideas.repec.org/e/pso158.html.

56 Sources: Jäntti, Markus and Sierminska, Eva, Survey Estimates of Wealth Holdings in OECD Countries: Evidence on the Level and Distribution (United Nations University, World Institute for Development Economics Research, 2007)Google Scholar; Freedom House, “Freedom in the World, 2008: Subscores (Political Rights),” http://www.freedomhouse.org/template.cfm?page=414&year=2008Google Scholar.

57 Rawls, Justice as Fairness, 137–38.

58 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.

59 For the relation of economic freedom and income per capita growth, see Gwartney, James D. and Lawson, Robert, Norton, with Seth, Economic Freedom of the World: 2008 Annual Report, p. 18Google Scholar. Economic Freedom Network. Digital copy available from http://www.fraserinstitute.org, http://www.freetheworld.com.

60 Murphy, Liam and Nagel, Thomas, The Myth of Ownership: Taxes and Justice (New York: Oxford University Press, 2002), 3233CrossRefGoogle Scholar; emphasis added.

61 Kant, Metaphysical Elements of Justice, 46ff [Akademie ed., 250ff].

62 Ibid., 33, 41 [Akademie ed., 233, 238]. See also Steiner, Hillel, “Kant, Property, and the General Will,” in Geras, Norman and Walker, Robert, eds., The Enlightenment and Modernity (New York: St. Martin's, 2000), 71ffGoogle Scholar.

63 This is certainly Mill's view in his discussion of private property in Book II of Principles of Political Economy.

64 Audi, Robert further explicates this idea of degrees of coercion in his Religious Commitment and Secular Reason (Cambridge: Cambridge University Press, 2000), 8788CrossRefGoogle Scholar.

65 Feinberg, Joel, “The Interest of Liberty in the Scales,” in his Rights, Justice, and the Bounds of Liberty (Princeton, NJ: Princeton University Press, 1980), 36CrossRefGoogle Scholar.

66 Hayek, F. A., The Constitution of Liberty (London: Routledge, 1960), 133Google Scholar.

67 Hayek actually seems to go so far as to say that you are not coerced at all in this case. Ibid., 141.

68 Benn, A Theory of Freedom, 144.

69 Narveson, Jan, The Libertarian Idea (Philadelphia, PA: Temple University Press, 1988), 66Google Scholar.

71 See, for example, Lomasky, Loren E., Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987), 132Google Scholar.

72 As I have tried to show in Property, Rights, and Freedom,” Social Philosophy and Policy 11, no. 2 (1994): 209–40CrossRefGoogle Scholar.

73 Eric Mack, “The Natural Right of Property,” elsewhere in this volume.

74 Will Wilkinson, The Fly Bottle, http://www.willwilkinson.net/flybottle/2008/05/30/please-discuss/ (accessed July 28, 2008). Wilkinson is suggesting a topic for discussion, and the claim is based on theories of freedom commonly held by classical liberals.

75 Ted F. Brown (Assistant for the Criminal Division of the IRS, 1998), quoted in Walker, Liezl, “The Deterrent Value of Imposing Prison Sentences for Tax Crimes,” New England Journal of Criminal and Civil Confinement 26 (Winter 2000): 1n. 4Google Scholar.

76 Understanding the Tax Gap” (FS-2005-14, March 2005), Internal Revenue Service, http://www.irs.gov/newsroom/article/0,,id=137246,00.html (accessed July 28, 2008)Google Scholar.

77 Walker, “The Deterrent Value of Imposing Prison Sentences for Tax Crimes,” 6.

78 Ibid., 7.

79 Feinberg, “The Interest of Liberty in the Scales,” 36.

80 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.

81 By comparing only flat-tax states, I have greatly simplified the analysis. With variable-rate 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.

82 See also my On Politics, Philosophy, and Economics (Belmont, CA: Wadsworth, 2007), chap. 2Google Scholar.

83 This is merely for purposes of exposition; a cardinal analysis is not required.

84 All this was implicit in our original ordinalist idea of an eligible set. A law 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.

85 I am grateful to Paul Gomberg for this point.

86 See Lister, Andrew, “Public Justification and the Limits of State Action,” Politics, Philosophy, and Economics, forthcomingGoogle Scholar. I respond to Lister's arguments in the same issue of the journal.

87 Mill, , The Principles of Political Economy, 7th ed., 938 (Book X, chap. xi, sec. 2)Google Scholar.

88 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.

89 Mill, The Principles of Political Economy, 937 (Book X, chap. xi, sec. 2).

90 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.

91 Rawls, Political Liberalism, 253.

92 I try to show just how broad this range is in my essay “Controversial Values and State Neutrality in On Liberty,” in Ten, C. L., ed., Mill's “On Liberty”: A Critical Guide (Cambridge: Cambridge University Press, 2009)Google Scholar.

93 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.

94 “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.

96 See, for example, Quong, Jonathan, “Three Disputes about Public Reason,” http://www.publicreason.net/wp-content/PPPS/Fall2008/JQuong1.pdfGoogle Scholar. See also Lister, “Public Justification and the Limits of State Action,” and my response to Lister's essay.

97 Kant, Immanuel, Critique of Judgment, trans. Pluhar, Werner S. (Indianapolis, IN: Hackett, 1987), 160 (sec. 40)Google Scholar. See also Kant, , “What Is Enlightenment?” in Reiss, Hans, ed., Kant's Political Writings, trans. Nisbett, H. B. (Cambridge: Cambridge University Press, 1977), 5460Google Scholar.