Four concepts of rules: A theory of rule egalitarianism
| DOI | 10.1177/1474885116653366 |
| Published date | 01 October 2019 |
| Date | 01 October 2019 |
| Subject Matter | Articles |
European Journal of Political Theory
2019, Vol. 18(4) 449–468
!The Author(s) 2016
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DOI: 10.1177/1474885116653366
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Article
Four concepts of rules: A
theory of rule egalitarianism
A
˚sbjørn Melkevik
Department of Political Studies, Queen’s University, Canada
Abstract
This article outlines the foundations of a nomos-observing theory of social justice,
termed ‘rule egalitarianism’, that explains how the seemingly contradictory merger of
classical liberalism and social justice is conceivable. The first step towards such a theory
consists in ensuring that a concern for the rule of law is etched in the very core of our
understanding of social justice, in which case some egalitarian rules will be acceptable
from a classical liberal viewpoint. The legal framework of capitalism can indeed be
designed to reduce inequality in the name of justice inasmuch as any egalitarian goal
is specified in terms of institutional rules. More precisely, rules in a liberal polity should
be general and abstract, which will lead us to establish a distinction between four
concepts of rules, namely between laws, regulations, statutes and decrees. Moreover,
against the neoclassical liberal understanding of social justice, rule egalitarianism argues
that having general and abstract rules of market capitalism imposes some constraints on
any institutional framework so that social justice becomes necessary to correct the
errors of imperfect generalisations, leaving some people behind.
Keywords
Classical liberalism, egalitarianism, equal treatment, Friedrich Hayek, rule of law
But is this law?
William Shakespeare, Hamlet, 5.1
Social justice – A hollow incantation but still a reasonable
concern
Classical liberals are not usually portrayed as being sympathetic to a social under-
standing of justice. Early classical liberals, such as Adam Smith, David Hume and
John Locke, were adamant about the importance of the rule of law, insisting that
rules must treat everyone as equally free, but, overall, they spent little if any time
Corresponding author:
A
˚sbjørn Melkevik, Department of Political Studies, Queen’s University, Mac-Corry C309, 68 University Ave,
Kingston, ON K7L 3N6, Canada.
Email: asbjorn.melkevik@queensu.ca
talking about social justice. Afterwards, modern classical liberals, like Friedrich
Hayek, Milton Friedman and Ludwig von Mises, were actively hostile to the idea
of social justice, as they were primarily concerned with defending market capitalism
against socialism. Hayek (2013: xix), for example notoriously characterised social
justice as a ‘mirage’, as well as a ‘fraudulent’, ‘meaningless’, ‘thoughtless’, ‘empty’
and ‘vacuous’ concept. Lest there be any doubt about his views, Hayek also wrote
the following – ‘I believe indeed that the greatest service I can still render to my
fellow men would be if it were in my power to make them ashamed of ever again
using that hollow incantation’. Such provocative remarks have been the source of
much criticism on the part of those who follow Rawls (1999: 3) in considering
justice as the ‘first virtue of social institutions’. Classical liberalism, hence, is usu-
ally thought to be incompatible with the main intuitions of what is variously
referred to as ‘high liberalism’, ‘liberal egalitarianism’ or ‘social justice liberalism’.
This assumption, I argue, is incorrect. The main contention of this article is that the
classical liberal tradition can be reconciled with social justice, but, for that to
happen, we must first ensure that a concern for the rule of law is etched in the
very core of our understanding of social justice. I accordingly propose an original
liberal approach, which I term ‘rule egalitarianism’, that will explain how this
seemingly contradictory merger of classical liberalism and social justice is both
conceivable and necessary through a proper understanding of the generality and
abstractness of the rules of market institutions.
The aforementioned idea that classical liberalism is hostile to social justice is
now shared by high liberals like Freeman (2007: 45) as well as, perhaps more
surprisingly, by neoclassical liberals such as Brennan and Tomasi (2012).
Neoclassical liberals are the intellectual heirs of the classical liberal tradition,
though they nonetheless take a stance against the supposed classical liberal disap-
proval of social justice – many of them preferring to call themselves ‘bleeding-heart
libertarians’. Neoclassical liberals who want to find a place for social justice within
classical liberalism, therefore, feel they have to look to the high liberal tradition to
find the intellectual tools permitting them to carry out such a project. Hence,
neoclassical liberals concerned with social justice adopt a high liberal justificatory
strategy, like Tomasi did on his own admission (2012: 95), while, in fact, I think,
they need not do so. Simply put, neoclassical liberals adopt the high liberal assump-
tion that the social order must be justifiable to everyone, including the worst-off,
and they think that market institutions can be so justified – that is classical liberal
institutions can be derived from the high liberal understanding of social justice.
Brennan (2007), for example interprets Rawls’s difference principle as requiring the
long-term maximisation of the welfare of the worst-off, and then claims that we
should thus favour market capitalism. Unfortunately, such a neoclassical liberal
approach does not explain how social justice may be valuable solely from a clas-
sical liberal viewpoint, and why some classical liberals had indeed good reasons to
defend some aspects of the modern welfare state. Overall, then, the classical liberal
tradition is still generally thought to be incompatible with social justice.
This portrait of social justice in the classical liberal tradition, however, is
inaccurate. Once we get past the scornful rhetoric used by many classical liberals
450 European Journal of Political Theory 18(4)
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