Imposing Values: An Essay on Liberalism and Regulation

A major question for liberal polities and liberal political theory concerns the proper scope of government. Liberalism has always favored limited government, but there has been wide-ranging dispute among liberals about just how extensive the scope of government should be. Included in this dispute are questions about the extent of state ownership of the means of production, redistribution of wealth and income through the tax code and transfer programs, and the extent of government regulation. Modern liberals have been favorably disposed toward a large role for government in all of these areas, whereas classical liberals have advocated a smaller role for government.

One purpose of this book is to give an accurate characterization of both modern liberalism and classical liberalism, explaining along the way why libertarianism is not the only form that classical liberalism can take. The main focus of this book, however, concerns regulation, specifically, the modern liberal regulatory agenda as it has taken shape in American society over the past century or so. I have chosen to focus on the United States, partly because I know it better and partly because the nature of the project requires detailed examination of particular laws and legislation. The modern liberal regulatory agenda is the set of regulatory regimes favored by all modern liberals and opposed by all classical liberals. It includes most of contemporary employment law, health and safety regulation, and land use regulation. The heart of the book consists of a systematic evaluation of arguments for and against all the items on this agenda. It turns out that there are good arguments on both sides for most of these items. Because of this, and because someone’s vision of the proper scope of government will ultimately prevail, some procedural requirements that all liberals could agree to must be satisfied for one side to impose legitimately its values on the polity at large. These procedural requirements are identified, argued for, and then applied to the elements of the modern liberal regulatory agenda. It turns out that many, though not all, of these elements have been illegitimately imposed on American society.

Intended Audience: This monograph is intended to advance the debate about the proper role of government in modern liberal societies. It could also be used as a textbook in contemporary political philosophy courses, since it gives a comprehensive overview of different and conflicting visions of the proper scope of government–not just as it pertains to regulation–in the first four chapters. The presentation is scrupulously even-handed, and it is only toward the end of the book that the author comes down squarely on one side in the debate between modern liberals and classical liberals. It should also be of interest to a range of scholars in political theory, political philosophy, the law, political science, and public policy, especially since it avoids disputes about principles at the deepest philosophical level.

Distinctive Contribution: The typical way of addressing questions like the one that animates this book (viz., what is the proper scope of government?) would be to identify and defend some abstract principle or principles and then work out their policy implications. I eschew this approach in favor of one that assumes at the outset that principles at the highest level of abstraction or (to mix metaphors) at the deepest philosophical level cannot be proved and that reasonable liberals will always differ about which set of principles is correct. The goal throughout most of the book is to see if, in the absence of clear and convincing proof of these principles, it is possible to get reasoned agreement among liberals about the proper scope of government. In other words, this book by-passes the traditional philosophical debates while remaining fully cognizant of and sensitive to their existence. It also discusses government regulation in a philosophically informed way; the latter is an increasingly important topic that has been relatively neglected by philosophers, who tend to focus more on redistribution.


Chapter Summaries

Chapter 1: Rights, Externalities, and Public Goods
The purpose of this chapter gives a preliminary characterization of classical liberalism and modern liberalism and to identify the points of agreement between two sides about the proper role of government. The two sides agree that: (i) government should respect fundamental political and personal rights, (ii) the economic system should be a market economy in which there is a presumptive but overridable commitment to private ownership of the means of production, and (iii) there is a role for the state in providing some public goods and in dealing with some externalities. It also identifies four kinds of arguments that modern liberals might use to convince classical liberals (and vice-versa) of their respective views of the proper scope of government.


Chapter 2: Private and Public Property
Classical liberals and modern liberals differ on the extent to which the state should own productive assets in an essentially private enterprise economy. It turns out that these differences are not deep in the sense that classical liberals do not oppose all state ownership of productive assets, and modern liberals are open to privatizing government-owned assets and indeed have supported the latter. Deeper differences are to be found regarding tax policy and transfer programs. An account of these differences is important for getting a complete picture of the respective views of modern liberalism and classical liberalism about the proper scope of government, but a full discussion of classical and modern liberal views on tax policy and transfer programs and how their differences might be resolved goes beyond the scope of what can be accomplished in this book, which focuses on regulation.

The method that is followed in this chapter and the next is to sketch the major institutional structures of the modern welfare-regulatory state and then detail the classical and modern liberal attitudes toward these structures.


Chapter 3: the Nature of Private Property Rights
The purpose of this chapter is to outline the points of agreement and disagreement between modern and classical liberals on the extent to which ownership rights should be restricted by the state through regulation. Property is a complex of rights, terms and conditions, and there are major and systematic differences between classical liberalism and modern liberalism about what regulatory restrictions they will countenance. The main, though not the only, kinds of regulatory restrictions which are favored by modern liberals yet opposed by classical liberals are restrictions on managements rights and the right of disposition. The kinds of things owned discussed in this chapter include: (i) productive assets and personal property, (ii) Charles Reich's "new property," (iii) labor, and (iv) the self.

Chapters 1-3 constitute a comprehensive statement of the points of agreement and disagreement between classical liberals and modern liberals about the proper role or scope of the government, at least in modern American society. One of the purposes of this book is to articulate a range of plausible forms of classical liberalism. Inter alia, these three chapters do just that.


Chapter 4: The Modern Liberal Regulatory Agenda
The main purpose of this chapter is to identify what I call ‘the modern liberal regulatory agenda,' which consists of the various regulatory regimes that modern liberals favor and classical liberals oppose. The first section of this chapter distinguishes economic from noneconomic regulation. The former includes rate regulation, regulation of entry and exit, anti-trust law, and wage and price controls. It is argued that the traditional disputes between modern liberals and classical liberals about economic regulation have become significantly attenuated over the past few decades, and the disagreements that remain are relatively narrow. By contrast, differences about noneconomic regulation remain profound. For this reason, the modern liberal regulatory agenda, as I define it, is about noneconomic regulation. That agenda is culled from the discussion in Chapter 3 about classical and modern liberal attitudes about restrictions on property rights; it covers three broad areas: (i) the employment relation, (ii) health and safety regulation, and (iii) environmental regulation.

Regulations of the employment relation that constitute part of the modern liberal regulatory agenda include: wage and hour legislation, equal pay for equal work, family and medical leave, laws governing collective bargaining, and anti-discrimination law. Health and safety regulation includes the regulatory regimes of the Occupational Health and Safety Administration (OSHA), the Food and Drug Administration (FDA), the Consumer Product Safety Commission (CPSC), and occupational licensure laws. Finally, the modern liberal regulatory agenda contains those environmental regulations that cannot be construed as substitutes for the common law. As I show, classical liberals need not oppose environmental regulations which can be construed as substitutes for the common law.  The main element that remains on the modern liberal regulatory agenda is land use regulation, specifically, the Endangered Species Act of 1973 and Section 404 of the Clean Water Act, which regulates wetlands.


Chapter 5: Common Ground Arguments
(previously parts of Chapters 4 & 5)
The first two sections of this chapter begin the discussion of what Chapter 1 calls ‘common ground arguments.' These are arguments that modern liberals might use to persuade classical liberals to support their regulatory agenda. They are based on shared liberal beliefs regarding the presuppositions of a market economy, fundamental rights, and negative externalities. I show that none of these arguments succeeds.

This remainder of this chapter explores the possibility of representing the aims of the various elements of the modern liberal regulatory agenda as public goods and state provision of these goods as solutions to public goods problems. Since some classical liberals can accept public goods arguments for state action, this sort of argument could in principle be used to bring about reasoned agreement between modern liberals and these classical liberals in a way favorable to these regulatory regimes.


Chapter 6: Regulatory Public Goods
Conceiving of the ends of the modern liberal regulatory agenda as public goods is a more promising approach than it might first appear, but in the end, it too does not succeed. This chapter critically evaluates public goods arguments for the various ends or goals of the modern liberal regulatory agenda. It finds that they either fail as public goods, or do not create genuine public goods problems, or the public goods problems that do exist can be solved through a tying arrangement with the provision of private goods and thus do not require state action.


Chapter 7: Conversion Arguments: Employment Law
Chapter 1 identifies a common type of argument deployed by modern liberals in support of various government regulations–a type of argument that makes no appeal to abstract principles about the proper role of government but instead appeals to lower-level moral principles about how people ought to be treated. I call these ‘conversion arguments,' since they are directed at converting classical liberals to the modern liberal faith (and vice versa). These arguments are also directed at those without firm commitments about the proper scope of government on a range of issues–moderates or pragmatists, as they style themselves. So, for example, instead of arguing for anti-discrimination law on the basis of some abstract principle about equal concern and respect or on the basis of Rawls's Fair Equality of Opportunity Principle, one might argue from a lower-level principle to the effect that discrimination on the basis of race in the workplace is wrong, and that these laws are the most effective means to prevent it. These conversion arguments reflect a kind of moral pragmatism that is characteristic of modern liberalism.

Chapters 7 through 10 canvass conversion arguments for each of the elements on the modern liberal regulatory agenda. It finds that, with a few exceptions, all such arguments can be reasonably challenged by classical liberal counterarguments of the same type. Such challenges typically involve explaining how the range of social problems identified by modern liberals could be or would be handled by a private ordering. The conclusion of this chapter and the next three is that, for nearly all items on the modern liberal regulatory agenda, there is persistent reasonable disagreement about these government interventions into a private ordering because there are opposing conversion arguments that each side can offer.

Chapter 7 opens with a more in-depth discussion of the epistemological status of conversion arguments and then articulates particular conversion arguments for and against all aspects of employment law, exclusive of anti-discrimination law, which is discussed in Chapter 8. Specifically, this chapter discusses conversion arguments for: (i) the Fair Labor Standards Act, which mandates a minimum wage and overtime pay, (ii) the Equal Pay Act, which requires equal pay for equal work, (iii) the Family and Medical Leave Act, which requires employers to give employees unpaid leaves of absence to take care of sick family members or for the birth or adoption of a child, and (iv) the terms and conditions under which collective bargaining takes place as specified in the National Labor Relations Act.


Chapter 8: Conversion Arguments: Anti-Discrimination Law
Chapter 8 discusses conversion arguments for and against anti-discrimination law in all of its guises. Specifically, it discusses Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination on the basis of race, color, religion, national origin, and gender. Also covered in this chapter is the Age Discrimination in Employment Act and the Americans With Disabilities Act.


Chapter 9: Conversion Arguments: Health and Safety Regulation
This chapter articulates conversion arguments for and against the regulatory regimes overseen by the Occupational Health and Safety Administration, the Food and Drug Administration, the Consumer Product Safety Commission, and the regulatory regimes that administer occupational licensure in the various states, with special attention to the licensing of physicians.


Chapter 10: Conversion Arguments: Land Use Regulation
This chapter articulates arguments for and against the regulatory regimes implicit in the Endangered Species Act (on endangered flora and fauna) and Section 404 of the Clean Water Act (wetlands regulation). It finds that the best arguments in favor of these regulatory regimes are public goods arguments, which were disposed of in Chapter 6. By contrast, there are good conversion arguments against all these regulatory regimes. The implications of this fact for the modern liberal regulatory agenda are discussed.


Chapter 11: Imposing Values
The purpose of this chapter is to explain what is to be done when reasonable disagreement persists among liberals about the proper scope of government, and when one or the other side has the political power to impose its vision–its values–on society. I argue for a number of requirements that must be satisfied if the imposition of the values in question is to be morally or politically legitimate. Specifically, the imposition must be: (i) done by the elected branches of government and (ii) publicly justified. My conception of public justification is different from those current in the literature, and those differences are explained here. Finally, (iii) that justification must be transparent, which demands the identification of both intended and unintended beneficiaries and intended and unintended "victims" (i.e., those whose interests are negatively affected) of the legislation. These requirements are rooted in certain values to which all liberals are committed.


Chapter 12: Applications
This chapter applies the requirements of Chapter 11 to selected items on the modern liberal regulatory agenda, specifically the prohibition on race and sex discrimination, occupational health and safety regulation as embodied in OSHA, and medical products regulation as overseen by the Food and Drug Administration. In this chapter, I conclude that, with the exception of one form of race discrimination, the imposition of these elements of the modern liberal regulatory agenda has not been morally legitimate, since one or more of the requirements articulated in Chapter 11 has been violated. Those elements could have been legitimately imposed, but they were not–and this is because of the way it was done (e.g., by judicial or bureaucratic fiat, after arguing for it in bad faith).

In closing, I re-examine the requirements for legitimately imposing values articulated in Chapter 11. I am sensitive to the charge that these requirements are impossibly stringent and ignore the rough and tumble nature of politics. At the end of the book, I make some effort to rebut that charge.