Reconciling Liberty and Equality

with Josh Cohen

Earlier this year, the philosopher Josh Cohen and I had a conversation to mark what would have been the 100th birthday of the political philosopher John Rawls. Cohen is a serious thinker on many, many subjects, but he’s got a special place in his heart for Rawls, and it shows here.

In this segment, we discuss why Rawls’ A Theory of Justice is such a monumental contribution to political philosophy. Josh explains that Rawls attempts to unify two political principles that were thought to be irreconcilable: liberty and equality. This is tricky business, and Josh goes into detail about the principles Rawls attempts to establish in order to theorize what would be, to him, a just society.

Enjoy!

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GLENN LOURY: Okay, so this is an important book. A lot of people are going to be wondering why. Can you explain why A Theory of Justice is a really historic intellectual achievement that'll be read 200 years from now?

JOSH COHEN: Well, I can try, and you can judge whether I'm successful or not. 

I want people to know, I'm not pretending to be a political philosopher here, but Josh and I have been friends for a very long time, and I know this is right at his heart. This is the core of the man. So I want to give him a chance to express it. 

And just as a preface, I should say, I do think it'll continue to be read for a very long time. In contrast, and I don't mean this as an invidious contrast, Ronald Dworkin was a brilliant legal and political thinker and incredibly influential. But I don't think Dworkin, who wrote a vast amount and is terrific in all sorts of ways, I don't think people are going to be reading Dworkin in the way that they'll be reading Rawls in 20 years, 30 years, 50 years. So there's something unusual about it. 

There are a few angles we can explore, but here's one angle. If you put yourself in the 1950s as John Rawls is writing this book, or the ‘60s, or it could be the ‘30s or ‘40s, some time in the twentieth century. And you think, what are the large options, so to speak, in political philosophy, large directions of thought?

I don't think it's stylizing too much to say there's a classical liberal tradition, which is very powerfully expressed, say, in Hayek's The Constitution of Liberty. The Road to Serfdom is a very important popular work. I don't think it's helpful to think of this as libertarianism in some overt way. In classical liberalism, the value of liberty is fundamental. And there's the perception and the claim that there is a fundamental tension between emphasizing the value of liberty and putting any weight on the value of equality. Friedman says in Capitalism and Freedom—and I think of that as another great text of classical liberalism—Friedman says, "You can be a liberal or you can be an egalitarian. You cannot be both." That's pretty close to a quotation. I think it's on page 195 of the edition that I have of Capitalism and Freedom. If anybody's interested, I can find it for you. So that's one kind of view. And then—again, stylizing some—there are these egalitarians. And maybe they're thinking of Marx as an egalitarian. People give according to their ability and receive according to their needs, a critique of exploitation. 

And so you can be an egalitarian or you can be a classical liberal, but you can't be both. Now, of course, it's true as a practical matter that when you look at the evolution of social democracy and social democratic welfare states over the course of the twentieth century, the practice is to try to be both. Critics of those political economies from the classical liberal position are always saying, “Well, the concern about equality is about to swallow up the commitment to liberty.” That's what Hayek says in The Road to Serfdom. He worries about that. And then critics from the left say, “The commitment to equality is somehow unstable because you still have a private property regime and et cetera.”

So Rawls comes along, and what Rawls says is that what he's aiming to do in his theory of justice—and this is pretty close to a quote—is to achieve what he calls "a reconciliation between liberty and equality." That is, to produce a political philosophy that is not founded on the idea that you've got a choice between these fundamental political values, but that there's a way of accommodating both of them in a coherent set of political philosophical principles. If somebody says other people did this before, you know, John Stuart Mill sort of did it, but in a utilitarian framework. I mean, there's John Stuart Mill, who is the author of On Liberty, and also a self-described socialist, but again, in the middle of the nineteenth century and it's in a utilitarian framework. 

That's a way to think about what Rawls was aspiring to do. And the commitment to the value of equality comes out in a whole bunch of different ways in his view, including the ways he thinks about democracy. The importance of fair political equality is part of his first principle of justice, his idea of fair equality of opportunity, that people who are equally able and equally talented should have equal chances. Not just legal equality of opportunity, but the substantive equality of opportunity and, in his difference principle, that inequalities are only justified if they work to the maximum benefit of the least advantaged. Not the middle class, by the way, but the least advantaged, meaning roughly people who are in the bottom quintile of the income distribution. The commitment to liberty is there as well. His first principle, a principle of equal basic liberties, has priority in his system. 

When he says that he's aiming to achieve a reconciliation of liberty and equality, he has an idea that he calls the worth of liberty. And the idea is you've got your liberties. They're protected as a matter of law, some basic liberties. But what's the value of the liberties to you? Well, that kind of depends on what you can do with them. At first approximation, what you can do with your liberties depends on the income and wealth that you've got. You know, the spirit becomes flesh, you can do stuff with the liberties that you've got.

So then he says, if you think that the worth of liberty, not just having the liberty but the worth of liberty, is in fact an increase in function of the wealth and income that you've got at your disposal, then suppose you start there. He has these two principles of justice. Everybody's entitled to equal basic liberties. And then part of his second principle, the difference principle, says inequalities have to work to the maximum benefit of the least advantaged.

So imagine that you've got both those principles satisfied. Well, what that means is if you've maximized for the least advantaged, then what you've done is not only maximize the income expectation, but you've maximized the worth of liberty to the least advantaged. And that's what Rawls says is what he calls "the end of social justice." The end of social justice is to maximize the worth to the least advantaged of, as he puts it, "the equal scheme of liberties shared by all." That's a long winded answer to your question.

I've got a couple of questions. So one of these is the simple-minded observation that, in order to expand the ability of the least advantaged to realize the potentiality of liberty, you have to take my property. I'm a successful person. You have to tax me. You have to, under threat of coercion, confiscate my wealth. How is that not an infringement upon my liberty? And where do you get off doing that? I mean, what is the justification for the infringement upon my prerogatives on behalf of this project? The other question is, why the least advantaged? Why is the least advantaged normatively trumping everything here? But I want you to address the first question first. 

Well, they're both great questions, and we'll take them in turn. Rawls thinks about it as a tax transfer. You have a tax transfer scheme that enacts the difference principle. And by the way, you talked earlier about the enthusiasm of people in economics. They were very interested in this. And Nick Stern—Sir Nicholas Stern of the Stern Report—wrote a paper in 1975 trying to figure out what the tax rates would need to be in order to satisfy the difference principle. I'm not evading your question. I'm giving an excessively thorough answer to your very good question. But this is a relevant point.

Rawls' second principle has an opportunity part and an outcomes part. The opportunity part, as I mentioned, is this idea of fair equality of opportunity that people who are equally able and equally motivated should have equal chances and not have differential chances in virtue of irrelevant facts, like the social class that they're born into or racial differences or gender differences. This was a principle that that fair equality of opportunity principle would require in order to satisfy it, it would require a wide dispersion of property and also have significant investment in education and training in human capital, so to speak.

Stern pointed out that what the tax transfer rates would need to be in order to meet the requirements of the difference principle depended in part on how successful you are in meeting the opportunity principle, at reducing the skew in the distribution of skill, and thus in reducing the skew in the distribution of market income. And the more you reduce the skew and the distribution of skill, thus reducing the skew in the distribution of market income, the lower the difference principle tax rates had to be. I mean, I think it's sort of intuitive, but he worked out the details.

Let me see if I can translate this to layman's. I think there are two spheres in which the egalitarian project can be pursued on Stern's analysis. One of them is at the point where people acquire their human capital in their earnings potential. The other is at the point where they realize their earnings potential.

Correct.

You can equalize the distribution of skill, and that means you'd have to do less redistribution of income. There's going to be a trade off between those things, and the economist's equations can tell you just where that margin is realized. 

Thank you.  I don't know if that was in layman's terms, Glenn. It did have the advantage of being shorter than mine, but yes, exactly right. So it's like a model of earnings in which, if you have unequal earnings, how much of that is due to inequalities in human capital and how much of it is due to labor market discrimination or something.

Let me just make an observation here about liberty, though. We still have to talk about why it is the least advantaged that receive consideration. But if you play out this idea that Stern suggests, and you think carefully about the acquisition of skill, you realize that some of that work gets done in this sphere of informal social life, within the family. To equalize access to the acquisition of skills seriously means equalizing the experiences that youngsters have in their most formative years, which take place in this private sphere of family association.

Now that seems to me to be an infringement upon liberty. The very well-educated and prosperous parents can't have a special school for their kids and can't give their kids every benefit of the human capital that they could transfer within the family, lest we end up with wide disparity in the preparation of people for earning incomes, which is inegalitarian.

And so I don't know what Rawls might have to say about that, but I wonder what you have to say about the conflict between the liberty of association and family life on the one hand and the imperative of giving people an equal opportunity to realize their human potential on the other.

We're going to get to the original infringement of liberty point that you made in a second. This is all a warm up to that. The hope, and maybe it's a pious hope, but it's at least an old hope, is that if the point of a system of fair equality of opportunity is that birth is not fate, that genesis is not destiny, that where you start out doesn't fix where you end up. That's an important idea. Then that's a rationale for investing a lot in education and training. And the hope is that you can get that kind of while preserving the virtues, the beauty of parents reading to their children, et cetera. That you can nevertheless do that in a way that's consistent with a system of strong equality of opportunity, if you're serious about investing in schools, as you know, Horace Mann's “great equalizer.” 

Now we know that Horace Mann was not entirely right about education being the great equalizer. But we also know that the investments in education and training that would be required, as well as in the dispersion of property, but the investments in education and training that would be required to get some kind of equality of chances, they haven't really been made very seriously in this this country. Maybe more in other places, but they haven't been made seriously. 

The short answer to your question about whether this is a fundamental infringement of liberty is that Rawls accepts what is essentially the constitutional consensus in the United States after 1937, which is the date of the Supreme Court decision West Coast Hotel v. Paris, which basically constitutionalizes the New Deal and overturns the earlier twentieth century Lochner era in which market liberties had a kind of constitutional prominence, arguably a preeminence. And the idea is that there's a fundamental difference.

It's also a kind of Brandeisian idea that there's a fundamental difference between the liberties that are associated with democracy—say, freedom of speech, freedom of association, freedoms associated with political participation, religious liberty—there's a fundamental difference between those liberties and the economic liberties, that is the liberties associated with market interactions and that the standards for regulating the latter. The market liberties are much looser than the standards for regulating the former, that is the fundamental liberties, religious liberty, freedom of speech, freedom of association, liberties associated with political participation, integrity of the person. The market liberties—that is the liberties associated with ownership of property and exchanging on the terms that you judge to be appropriate—don't have the same kind of prominence in the liberty firmament that the democratic and religious liberties have. 

Now there's a further question, which is, what accounts for the difference? And we can talk about that. But the way Rawls is thinking about this is that what his first principle protects is not, as he would put it, liberty as such. It’s not a uniform high level of protection provided for all choices. It's there are certain what he calls basic or fundamental liberties, the ones that I mentioned before. So you can't regulate religious liberty in order to improve the circumstances of the least advantaged. You can't say no voting rights for the rich. But market liberties are a different matter.

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