A just society requires just institutions.
With the George Floyd killing and associated protests raising a number of issues involving race, the police, and state power that have long interested libertarians, the relationship between libertarian thought and calls for “social justice,” coming almost exclusively from the left, has found its way into the spotlight. Although some libertarians are comfortable with the term “social justice,” it’s probably fair to say that a clear majority is not, often citing Hayek’s criticism of the term or just generally rejecting the set of policy proposals that they assume come along with endorsing the term. For many years, I was part of that majority, but over the last decade or so, I have become much more comfortable with the idea that libertarians can and should be advocates of social justice. I hope to make that case in what follows.
The central problem for libertarians is that the term “social justice” appears to have a number of possible meanings, some of which are more congenial and some of which are less congenial to libertarian thought. What we might call the “strong” version of social justice is the one that Hayek objected to in Law, Legislation, and Liberty almost 50 years ago. On that view, social justice seems to require a top-down redistribution of resources (material and otherwise) that would fit a pre-determined pattern understood as “just.” That is, justice was a matter of how the actual distribution of resources corresponded to the pre-conceived pattern judged to be just. The “social” in “social justice” referred to this ability to take the synoptic view of the social order and to understand how the workings of that order could be managed to intentionally create a just outcome.
Hayek’s very much correct response to this view of social justice came in two parts. First, he argued that justice is about individual intentional actions, not social, emergent outcomes. Any concept of justice, he argues, must be understood (as Adam Smith argued) as the absence of injustice. And injustices involve someone behaving wrongly and someone being the victim of that behavior. My stealing your property is unjust because we can identify someone responsible for the actions that caused harm to the victim. Contrast that with claiming that the distribution of income in a free market is unjust. Incomes are the unintended consequences of millions of separate choices. No one is responsible for the income you earn in a market economy, thus to call that income “unjust” is a category error as no one need have acted unjustly in order for your income to be what it is. The emergent outcomes of complex social processes are neither just nor unjust. They simply “are,” argued Hayek.
Second, he argued, echoing Robert Nozick’s contemporaneous response to John Rawls’ theory of justice, that liberty and the enforcement of a specific outcome pattern were incompatible. If the idea was to produce a particular distribution of income, that could only be attempted with a very heavy-handed set of top-down restrictions on people’s liberty. The effects of those restrictions would be a worsening of the material well-being of everyone. Plus, argued Hayek, those attempting to create and enforce some pre-determined outcome would, like all economic planners, lack the knowledge necessary to know what to do to bring about that outcome. Advocates of this strong form of social justice would inevitably fail at bringing about their desired outcome pattern, especially if they allowed for any significant degree of liberty in the process. As Nozick said of Rawls, “liberty upsets patterns.” For Hayek, the concept of “social justice” was meaningless as a form of justice, and would inevitably fail if it those in power attempted to implement it.
For over two decades, this was pretty much the standard view of social justice among libertarians. Although Hayek’s criticisms remain powerful, they are less telling against other meanings of the term social justice.
Another version of social justice is what we see more often today, which is a set of demands for improving the condition of the least well-off, whether that be in terms of material resources or in terms of social standing and respect. These demands normally do not come with the top-down, pattern-enforcing approach that characterizes the strong version of social justice. No doubt, some of that remains, but the focus is on structural and institutional causes and reforms. The belief among the adherents of this notion of social justice is that the problems faced by the least well-off are the result not of individual bad behavior by other members of society, but of deeper, institutional factors that make the resulting injustices toward the least well-off “social” rather than individual. For example, racial disparities cannot be solved just by individuals having more enlightened views on race, but instead require deeper structural changes to political, social, and economic institutions. Working for social justice means both prioritizing the well-being of the least well-off (whether in terms of class, or race, or gender, etc.) and advocating for the structural changes that would end the injustices they face.
Yes, progressive social justice activists often propose solutions that are echoes of the top-down attempts at pattern making that Hayek rightly objected to. But not always. More important, though, is that there’s no reason that classical liberals need to disagree with this second, less strong understanding of “social justice.” This has been the position associated with the “bleeding heart libertarianism” movement over the last decade or so. The Bleeding Heart Libertarians blog was subtitled “free markets and social justice” to emphasize the importance of that latter term. At a more philosophical level, bleeding heart libertarianism argued that libertarianism would do a better job meeting Rawls’ “difference principle” (the idea that inequalities are only justified to the extent they primarily benefit the least well-off) than would progressive/leftist social institutions. This was a very intentional attempt to create an intellectual synthesis between Hayek (and other libertarian thinkers) and Rawls. That attempt has been pretty successful in getting libertarian ideas into new and long-standing academic and policy conversations in exciting ways. It also demonstrates that dismissing all talk of social justice as leftist nonsense is a huge mistake, both intellectually and strategically.
Intellectually it’s a mistake because the classical liberal critique of social disparities is a structural and institutional one. Whether it’s race, gender, sexuality, or any other social/demographic category, libertarian analyses focus not on the hearts and intentions of individual actors, but the way in which economic, political, and social structures and institutions systematically harm particular groups regardless of the intentions of those in power. We have seen this pretty clearly with respect to race in the conversations surrounding the death of George Floyd and the resulting protests.
Libertarians have long argued that poorly designed public policies and political institutions are the sources of both differences in the material well-being of whites and people of color and their differential treatment by state actors. Libertarian academics and policy analysts have not only not ignored the problem of racial inequality, they have both offered a structural analysis of its causes and suggested institutional changes that they believe would dramatically reduce those problems. One example historically is the argument that the minimum wage and other labor market regulations not only prevent upward mobility for the poor, but disproportionately affect women and people of color. If we want to raise the incomes of African-Americans and reduce the racial income gap, pulling the regulatory state off the backs of those at the entry level of the labor market would be a good place to start. The history of government regulation of housing tells a similar story of racism that continues to affect the racial wealth gap today. Additionally, one way to help married women who wish to work outside the home would be to reform the structure of US tax law which has a strong secondary earner bias that harms mostly women by taxing the first dollar earned by the “secondary” earner at a higher marginal rate than the primary earner. This discourages paid work by married women and is a structural feature of how we tax income. Finally, it is more generally true that the harmful effects of economic regulation disproportionately fall upon the poor, making upward mobility more difficult regardless of race or gender. I don’t have the space here to go into more detail, but do follow the links to learn more.
What is important is that the libertarian analysis of social inequities is structural and institutional and not a matter of bad people with racist/sexist views causing intentional harm to others. We don’t agree with our leftist friends completely about which structures and institutions matter, but we do agree that doing better by the least well-off should be a priority and that it requires a lot more than just changing people’s hearts. We have too many institutions that generate incentives that lead basically good people to do bad things, or do things whose unintended consequences perpetuate social injustices. Pointing out the history of those institutions and how they generate those problematic incentives and unintended consequences is the task of a critical classical liberal social theory, and proposing alternative institutional arrangements, or explaining why abolishing existing ones would help, is one important way that classical liberals work for social justice.
When classical liberals talk about the regressive effects of regulation, or the way in which minimum wage laws cut off the bottom rungs of the income ladder, or how qualified immunity and other aspects of modern-day policing lead to cop violence in general, and violence and harassment of people of color (and other groups such as the LGBTQ community or sex workers) in particular, we are talking the language of social justice. When we demand changes in those laws and institutions so that those of modest means can experience greater upward mobility, or that people of color can live their daily lives without fear of unjustified harassment, arrest, or injury/death at the hands of the state, we are talking about social justice. The reasons these problems exist lie within the institutions and structures of the state, not (only) in the hearts of the people who do the work involved. The cure is to be found in changing ideas about how the social world works, not in changing hearts.
And our desire to improve the condition of the least well-off should not stop at the borders of the US. As Bryan Caplan and others have noted, the best thing we could do to reduce global poverty is to expand free trade and open the borders. If we believe in social justice, this might be the most important cause we can support, and we should do what we can to bring our progressive friends on board.
The fact that social justice is the language of the left is not, in itself, reason to reject it. Our disagreements with people on the left about some issues should not prevent us from working together where we can find common ground. The current conversation about race, the police, and the carceral state is just such an opportunity, as the support from Democrats for Libertarian Representative Justin Amash’s bill to end qualified immunity for the police demonstrates.
Working together on this common ground need not deter us from being up front about where we disagree with the left. In fact, the more that we show a good faith commitment to fighting police abuse and the racial inequities associated with it, the more the left might be willing to hear us out on the way in which the regulatory state is responsible for other racial and gender inequities, as well as the perpetuation of poverty. The opportunity in front of us right now is one where libertarians have been right about a variety of issues for a long time and where the left is coming around to our views. The right response is not to spike the ball and engage in endless rounds of “told you so,” but to welcome the left to this fight with magnanimity and good faith with the hope of creating a real alliance to work for social justice.
The issues are too important and the opportunity is too great to let the weight of our historical concerns about the term “social justice” stop us from doing the work that needs to be done. We owe at least that much to the long list of victims of state-sponsored violence and to our fellow citizens of color who live in justified fear of the state every single day.