Lauren Hall's Radical Moderation as a Response to Trump's Dictatorship: Evolutionary Ordoliberalism?

 

Recently, Lauren Hall appeared on the Reason Interview with Nick Gillespie.  She was asked to explain how her proposed "radical moderation" could overcome America's social and political polarization, which has become ever more destructive under Donald Trump's dictatorial rule.  Although she might not like the term, what she says here sounds to me like an evolutionary ordoliberalism.  

Hall is a professor of political science at the Rochester Institute of Technology in Rochester, New York.  She writes about her Radical Moderation at her Substack.  I know her as one of my very best graduate students at Northern Illinois University.

Hall says that her radical moderation is moderate in the fundamental sense of avoiding excessive or extreme ideas and behavior and more particularly rejecting binary thinking.  So she rejects the tribalism that forces a false binary choice of Blue or Red, Left or Right, Black or White, Black Lives Matter or Blue Lives Matter, and all the other zero-sum choices imposed on us.

But her moderation is radical because it goes beyond a one-dimensional moderation that would seek a middle ground between two extremes--a compromise in between Left and Right, black and white, either/or.  Instead, she says her radical moderation is a four-dimensional moderation that recognizes that human beings live in a complex four-dimensional world: the breadth of social networks, the depth of the deep challenges of life, the heights of human achievement, and the extended historical, developmental, and generational time in which life is lived.

In contrast to this messy complexity and contingency of real human life, America's social and political polarization simplifies life into a binary tribalism: it's us or them, friends or enemies, the real Americans or those Americans who are not real Americans.  This binary tribalism has created a hate-filled division not only in our political life (the vicious partisan rage that divides Republicans and Democrats) but also in our personal life (for example, families that cannot discuss politics at the Thanksgiving dinner table without fear of it becoming a mean-spirited fight).

To overcome this polarizing conflict that is tearing us apart, Hall suggests, we must first understand what it is in our human nature that has caused it.  And then we must search for a solution--some way to resolve or at least moderate the conflict.

First, we must understand the evolutionary psychology of tribalism as a propensity of our evolved human nature.  Hall explains how she studied the evolutionary biology of human behavior with David Sloan Wilson at Binghamton University where she was an undergraduate student.  She then continued those evolutionary studies in combination with political theory as a graduate student in political science.  When she was a student at NIU, the Department of Political Science had "Politics and the Life Sciences" as a graduate field of study, which combined behavioral political science, political theory, and biopolitical science.

Drawing on these biopolitical studies, Hall can explain polarized tribalism as a deep tendency of human nature.  Human beings have a natural desire for social membership--for belonging to a group, collaborating with others in that group, and deriving one's identity from that group.  We can belong to many different groups--our family, our neighborhood, our church, our school, our profession, our political party, our ethnic group, our nation.

There's a dark side to this social cohesion of a group, however, because we often cooperate within our group to compete with those outside our group.  This is the in-group/out-group psychology of tribalism.  I have written about this as the evolutionary psychology of "parochial altruism"--we have evolved to be nice to insiders but nasty to outsiders.  This explains why some MAGA intellectuals have embraced Carl Schmitt's argument that politics is all about the fight between friends and enemies as supporting Trump's politics of rewarding the loyalty of his friends and punishing the animosity of his enemies.

While it would be foolish and dangerous to try to suppress the tribalism of our nature, Hall argues, we can and should mitigate tribal conflict by bringing under the "big tent of liberal democratic institutions" that protect liberal pluralism without agreement on a particular way of life for America.  She describes her appreciation for pluralism as a product of her life in America's liberal social order.  

She stresses the complex multiplicity of her social identity: "I'm Lauren Hall, an author, speaker, professor, wife and mother, university administrator, and haphazard gardener.  I grew up in a Zen Buddhist house in a Jewish town with evangelical and Mormon relatives.  After a childhood spent navigating different perspectives, I went off to graduate school and studied evolutionary psychology, political behavior, and political thought.  I've worked and studied with progressives, conservatives, libertarians, and everything in between and am all the better for it."  In 2019, she converted to Catholicism.  So she belongs to, or at least appreciates, many different tribes.  And in a liberal open society like America, there is enough tolerance for cultural diversity that those tribes can live together in peace.

But then came Trump.  She has admitted "I Was Wrong About Trump."  After his first term, she thought Trump was "egotistical and uninterested in governance, but maybe not completely pathological," and therefore he would not be too dangerous in his second term.  But she was wrong because she did not foresee what he has done in the first year of his second term in his vicious attacks on the institutional foundations of liberal democracy.  She identifies the five most prominent examples of this: attacks on the rule of law and checks and balances, attacks on civil society institutions, undermining shared epistemological foundations (through misinformation and conspiracy theories), undermining respect for elections, and violent rhetoric and dehumanization of citizens.

America's two major political parties have allowed this to happen, Hall observes, and therefore we cannot expect the two parties to reverse this slide into dictatorial authoritarianism.  The one possible solution that she proposes is to have civil society institutions--charitable foundations, universities, media organizations, corporations, and prominent citizens--to form "A Coalition for America" that would protect the seven keystone institutions that secure liberal pluralism:

1. Separation of powers and checks and balances.

2. An independent judiciary.

3. Federalism that respects state and local governance.

4. Rule of law, not rule of men.

5. Free and independent media.

6. Academic freedom and independent universities.

7. Fair and transparent electoral processes.

The fundamental principle here is to establish institutions that put power against power.  Or as Madison said in Federalist 51: "This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public."  This is what I have called the principle of institutional countervailance, which is deeply rooted in the evolutionary history of politics.

I have also identified this reliance on liberal institutions to secure liberal pluralism as ordoliberalism.  This idea of ordoliberalism originally came out of the University of Freiburg beginning in the 1930s.  The central concept of the Freiburg School was captured by the German word Ordnung or the Latin word Ordo.  Liberalism, the Freiburg theorists argued, requires a market order that is a constitutional order, and thus true liberalism must be an ordo-liberalism.  Some proponents of laissez-faire liberalism sometimes convey the impression that free markets can function best without any rules enforced by government, and indeed some of them (like Murray Rothbard, for example) have been anarchists.  But the Freiburg ordo-liberals have argued that a free-market order is not anarchistic, because it depends upon a constitutional framework that sets the rules of the game of free competition, in which all economic agents meet as legal equals and coordinate their activities through voluntary exchange and contract.  This constitutional order of liberty includes both the informal norms that arise through cultural evolution and the formal norms of legal and political design.  Friedrich Hayek showed the influence of ordoliberalism when he spoke about "the constitution of liberty" as an institutional framework of impartial rules that would check powerful rulers and special interests seeking unfair advantages from government and thus secure liberty in a pluralist society.

So I see Hall's argument for protecting the institutions of liberal democracy as ordoliberalism.  I also see it as an evolutionary ordoliberalism, because it is rooted in her understanding of how the evolution of human nature makes it necessary to have an institutional framework that constrains the pursuit of power and protects liberty.  This reminds me of her work as a graduate student.  She wrote a Master’s thesis arguing that evolutionary psychology supported Hayek’s argument for liberty under the rule of law against utopian conceptions of the centrally planned society.  She extended this line of thought in a dissertation arguing for what she called “evolutionary liberty,” which applied Darwinian science to support a classical liberal understanding of liberty.  She showed how a Darwinian conception of evolved human nature can sustain the arguments in the classical liberal tradition from Adam Smith to Hayek.  (I have written a lot about the evolutionary liberalism of Hayek and Smith.)

Reason magazine is a libertarian or classical liberal journal with the motto "Free Minds and Free Markets."  And so, as one would expect, the Reason Interview usually spotlights someone with libertarian leanings.  If I am right, then Hall's Radical Moderation might not exactly represent libertarianism, but it does suggest evolutionary ordoliberalism.

The Freiburg School of Ordoliberalism and the Freiburg Workshop on Liberalism and Evolution

In a few days, I will be travelling to Freiburg, Germany, to participate in a workshop on "Liberalism and the Evolutionary Agenda," sponsored by the Walter Eucken Institut in Freiburg and the Max Planck Institute of Economics in Jena.  We will be meeting at the beautiful Mercure Hotel Panorama, on the edge of the Black Forest overlooking Freiburg.

Freiburg

 

                                                                 Mercure Hotel Panorama

This is my second major conference this year on the intersection of evolutionary science and liberalism.  The first was the meeting in June in the Galapagos Islands on "Evolution, the Human Sciences, and Liberty," which was sponsored by the Mont Pelerin Society and the Universidad San Francisco de Quito.  Just as I wrote a series of posts on the Galapagos meeting in July, I will write another series of posts on the Freiburg meeting once I return.

It's appropriate that this workshop is being held in Freiburg.  Friedrich Hayek was one of the leading thinkers bringing together Darwinian evolution and liberal thought, and he spent most of the last decades of his life in Freiburg, associated with the University of Freiburg (1962-1968, 1977-1992).  Moreover, the sponsorship of the Walter Eucken Institut in Freiburg shows the influence of the Freiburg School of Ordoliberalism (from the German Ordoliberalismus).  I will be giving the opening lecture at the workshop on "The Evolution of Darwinian Liberalism," and I plan to point out how similar my arguments are to the reasoning of the Freiburg School.

Viktor Vanberg has written a good paper on the intellectual history of the Freiburg School.  This school of thought originated at the University of Freiburg in the 1930s through the work of economist Walter Eucken (1891-1950) and two jurists, Franz Bohm (1895-1977) and Hans Grossmann-Doerth (1894-1944).

The central concept of the Freiburg School was captured by the German word Ordnung or the Latin word Ordo.  Liberalism, the Freiburg theorists argued, requires a market order that is a constitutional order, and thus true liberalism must be an ordo-liberalism.  Some proponents of laissez-faire liberalism sometimes convey the impression that free markets can function best without any rules enforced by government, and indeed some of them (like Murray Rothbard, for example) have been anarchists.  But the Freiburg ordo-liberals have argued that a free market order is not anarchistic, because it depends upon a constitutional framework that sets the rules of the game of free competition, in which all economic agents meet as legal equals and coordinate their activities through voluntary exchange and contract.  This constitutional order of liberty includes both the informal norms that arise through cultural evolution and the formal norms of legal and political design.

This might seem to violate the classical liberal principle of spontaneous order as an unintended order that is free from governmental planning.  But while arguing for the deliberate planning of a constitutional framework of general rules within which markets work spontaneously, the ordo-liberals argue against the attempt to deliberately plan an economy to achieve specific outcomes.  The deliberate planning of the constitutional order can indirectly improve the economic order by facilitating the spontaneous emergence of free economic coordination, but this is very different from the effort of economic planning through specific interventions to achieve directly some desired outcome.  Liberal planning creates general or abstract rules enforced equally over all individuals, so that government does not create special privileges for anyone.  As Vanberg indicates, this ordo-liberalism is very similar to James Buchanan's "constitutional economics."

I would like to know more about how Eucken and others acted during the Nazi era--particularly, during the Rectorship of Martin Heidegger at the University of Freiberg, beginning in April of 1933.  I have heard that they were linked to the resistance movement of Dietrich Bonhoeffer.  Is this true?  Did they resist Heidegger's Nazification of the University?  I don't know.

The influence of the Freiburg school on public policy was greatest in the late 1940s and early 1950s, when Ludwig Erhard--a product of the Freiburg school--was Finance Minister of Germany.

The liberal thought of the Freiburg School is the kind of classical liberalism that I defend in my paper for the Freiburg workshop.  I argue that the fundamental idea of liberalism is that society is largely a self-regulating unintended order--a largely self-enforcing order created unintentionally by the free exchanges of individuals seeking to satisfy their individual desires.  Darwinian evolutionary science supports that liberal idea by showing how human social order--morals, markets, laws, and politics--arises from the evolutionary interaction of the unintended orders of human nature and human culture and the intended order of human reason.  Thus, social order is largely self-regulating as it emerges from the unintended evolution of human nature and human culture; but social order is not completely self-regulating insofar as it is influenced by the intentional choices and deliberate planning of human individuals, although those choices and planning are constrained by human nature and human culture.  Governmental choices and planning are required to design the constitutional order that sets the general rules within which the spontaneous orders of life can arise.

And yet, as Vanberg indicates, this leaves the classical liberal with a dilemma: government is both the necessary guardian of the competitive order and the greatest threat to it, because we need government to enforce the abstract rules of a free society without granting special privileges to anyone, but government is always a target of interest groups seeking special privileges, and it's hard to devise constitutional rules to prevent privilege-seeking and privilege-granting (or "rent seeking," as the Public Choice economists call it).  This is the great conundrum of liberal constitutionalism.

Some of these points have been elaborated in some previous posts here, here, here, here, and here.

Here's the schedule of speakers for the Freiburg conference.

Workshop: “Liberalism and the Evolutionary Agenda”

December 12 ‐ 15, 2013

Hotel “Mercure Panorama”, Freiburg, Germany

 

 

Thursday, December 12

15:00 ‐ 16:30 Larry Arnhart (Political Science, Northern Illinois University Dekalb)

“The Evolution of Darwinian Liberalism" 

Discussant: Heiner Ursprung (Economics, University of Konstanz)

 

16:45 ‐ 18:15 Jan Schnellenbach (Economics, University of Freiburg)

“Does Classical Liberalism Imply an Evolutionary Approach to Policy Making?”
 

Discussant: Mark Pennington (Political Science, King’s College London)

Friday, December 13

09:00 – 10:30 Michael Ruse (Philosophy, Florida State University)

“Adam Smith, Charles Darwin, John Rawls: or Why We Might Expect Our Dinner”
 

Discussant: Christian Schubert (Economics, University of Technology Cottbus)

 11:00 – 12:30 Margaret Schabas (Philosophy, University of British Columbia)
“John Stuart Mill: Economic Liberalism in an Evolutionary Context”
 

Discussant: Gerhard Wegner (Economics, University of Erfurt)

 16:45 – 18:15 Naomi Beck and Ulrich Witt (History of Science, MPI Berlin and Economics, MPI Jena)
“Liberalism and the Teleological Turn in the Theory of Cultural Evolution”
 

Discussant: James Konow (Economics, Loyola Marymount U. and Kiel U.)

 

19:30 – 21:00 Franz Wuketits (Biology, University of Vienna)

Tba

Discussant: N.N.

 

Saturday, December 14

 

09:00 – 10:30 Thomas Reydon (Philosophy, University of Hannover)

“The Evolution of Human Nature and Its Implications for Politics: A Critique”
 

Discussant: Jean Gayon (Philosophy, Sorbonne Université Paris)

  11:00 – 12:30 Ken Binmore (Economics, University College London)
“Game Theory and the Social Contract”
 

Discussant: Richard Sturn, (Economics, University of Graz)

 15:00 – 16:30 Alain Marciano (Economics, University of Montpellier)
“Classical Liberalism, Social Darwinism and the Ambivalence of Sympathy”
 

Discussant: Viktor Vanberg (Walter Eucken Institute, Freiburg)

16:45 – 18:15 Georgy Levit (Biology, U. and U. of Jena)

“Critics of Biopolitics: Can a Hypothetical ‘Innate Proclivity to Hierarchically Structured Political
Systems’ Explain Real Totalitarian Regimes?”
 

Discussant: Marco Lehmann‐Waffenschmidt (Biology, University of Dresden)

In Defense of Darwinian Classical Liberalism: A Reply to "Darwinian Reactionary"

In "Darwinian Reactionary vs. Darwinian Conservatism vs. Darwinian Left," Darwinian Reactionary (DR) claims that he and I are the two contenders "for the crown of The One True Darwinian Social and Political Theory."  He argues that his "Political Theory of Teleoformalism" is far superior to my Darwinian Lockean libertarianism.

In response, I will make three points.  First, what I am defending is Darwinian classical liberalism--not libertarianism.  Second, my Darwinian classical liberalism largely agrees with DR's Teleoformalism and its four principles of justice.  Finally, DR fails to see that those principles of justice motivate us to act only insofar as they appeal to the natural desires of evolved human nature.  

Although I often lean towards libertarianism, my thinking has been mostly in the tradition of evolutionary classical liberalism as represented by John Locke, Adam Smith, Edward Westermarck, and Friedrich Hayek.  I have also embraced the tradition of Ordoliberalism that began at the University of Freiburg in Germany in the 1930s. The central concept of the Freiburg School was captured by the German word Ordnung or the Latin word Ordo.  Liberalism, the Freiburg theorists argued, requires a market order that is a constitutional order, and thus true liberalism must be an ordo-liberalism.  Some proponents of laissez-faire liberalism sometimes convey the impression that free markets can function best without any rules enforced by government, and indeed some of them (like Murray Rothbard, for example) have been anarchists.  But the Freiburg ordo-liberals have argued that a free-market order is not anarchistic, because it depends upon a constitutional framework that sets the rules of the game of free competition, in which all economic agents meet as legal equals and coordinate their activities through voluntary exchange and contract.  This constitutional order of liberty includes both the informal norms that arise through cultural evolution and the formal norms of legal and political design.

This might seem to violate the classical liberal principle of spontaneous order as an unintended order that is free from governmental planning.  But while arguing for the deliberate planning of a constitutional framework of general rules within which markets work spontaneously, the ordo-liberals argue against the attempt to deliberately plan an economy to achieve specific outcomes.  The deliberate planning of the constitutional order can indirectly improve the economic order by facilitating the spontaneous emergence of free economic coordination, but this is very different from the effort of economic planning through specific interventions to achieve directly some desired outcome.  Liberal planning creates general or abstract rules enforced equally over all individuals, so that government does not create special privileges for anyone.  This ordo-liberalism is very similar to James Buchanan's "constitutional economics."

According to DR's teleoformalism, the end of the state is to advance the four principles of justice that serve four biofunctional norms of interpersonal behavior: "tit-for-tat non-interference, kin altruism, mutually beneficial exchange aka reciprocity, and cooperative conventions."  DR claims that while his teleoformalism and my libertarianism agree on the first principle--tit-for-tat non-interference--my libertarianism does not support the other three principles.  But DR is mistaken.  Because my Darwinian classical liberalism agrees with his teleoformalism that the state must advance all four of these principles.

THE FIRST PRINCIPLE OF JUSTICE

"The first principle of justice," DR explains, is "the common belief that the state's primary function is to protect individuals from harm from other individuals, groups, or itself.  Teleoformalism interprets harm bioformalistically: harm is any human behavior that reduces an individual's ability to live out its form of life as excellently as he or she is willing and able."  This ability to pursue the good contains "the traditional Lockean notions of life, health, liberty, and property."  So, with respect to this "primary function" of the state, DR agrees with my Lockean liberalism.

THE SECOND PRINCIPLE OF JUSTICE

The second principle of justice is "kin altruism" in the "private sphere" of "genetically related family members."  Evolution has shaped our human nature so that one of the primary natural ends of life is finding a sexual mate with whom we can produce children and then rear them in the best possible environment for their development into adults.  

DR notes that Locke recognized this in the First Treatise: "For Children being the course of Nature, born weak, and unable to provide for themselves, they have by the appointment of God himself, who hath thus ordered the course of nature, a Right to be nourished and maintained by their Parents" (para. 89).  This right of children to parental care creates a duty for the parents to provide that care (para. 90).  DR doesn't cite the pertinent passages in the Second Treatise, where Locke affirms that parental authority is derivative of parental obligation: "The Power, then, that Parents have over their Children, arises from that Duty which is incumbent on them, to take care of their Off-spring, during the imperfect state of Childhood" (para. 58).  DR also doesn't mention that Locke wrote a whole book--Some Thoughts Concerning Education--about the duties of parents to nourish, protect, and educate their children morally and intellectually.

DR complains that Locke says nothing about what should be done if parents refuse to care for and educate their children or otherwise neglect or even abuse them.  In that case, the teleoformalist norms of kin-selection dictate that the state enforce some child protection laws.  By contrast, DR says that some libertarians claim that children are the property of their parents, and therefore they have the right to treat their children as they wish without any interference from the state.

But DR does not recognize that parental ownership of children is only one of four competing theories of the parental role that libertarians have proposed.  The other three are parenting as charity, parenting as voluntary social contract, and causal parental obligations in the creation of peril.  Jake Desyllas (2025) has made a persuasive argument that the first three theories are flawed and that the theory of causal parental responsibility in the creation of peril is the most defensible libertarian theory of parenting, and it is the only theory that is compatible with Lockean liberalism.

Creation of peril is a legal principle in both tort and criminal law that imposes a duty to act when a person's own conduct creates a dangerous situation for someone else, even if the initial act was accidental or unintentional (Alexander 2017).  For example, while you do not generally have a duty to rescue people in a burning building, if you have accidentally started the fire, then you do have a duty to rescue the people who are in danger because of your action.

Similarly, if you engage in sexual intercourse, there is some chance that your gametes will be fertilized, and you will create a child who will be born in a condition of mortal helplessness.  Having put that child in a state of peril, you are positively obligated to care for that child, because refusing parental care would be an act of aggression against that child.  And under the Lockean principle of non-interference or no-harm, the state can intervene to protect the child's natural right to be free from aggressive harm.

Desyllas lays out the argument in five steps:

1. People are responsible for the reasonably foreseeable consequences of their actions, whether intended or not.

2. As a consequence of creating a child, parents have put another human being (the child) in a state of peril.

3. Children cannot consent to being born.

4. Since the child did not create their own state of peril nor consent to it, the child's peril is entirely the responsibility of the parents.

5. Therefore, parents have a positive obligation to do whatever is necessary to remove the child from a state of peril, since not doing so would constitute an act of aggression as a form of tort (197).

Notice that the positive obligation of parents to care for their child is ultimately rooted in the negative obligation to refrain from an act of aggression that would lead to the child's death and thus violate the child's right to life.  Having created a child who is utterly helpless, parents who would refuse to properly care for that child would allow that child to die, and consequently they have a positive obligation to prevent that mortal peril from happening.  

A Lockean government has the authority to enforce that natural duty of parental care under the non-interference principle of justice--that no man has the right to aggressively threaten the life of another.  Locke suggests this when he says that parental power cannot "extend to Life and Death, any time, over their Children, more than over any body else" (ST, para. 170).  So just as we have no right to aggressively take the life of any other person, parents have no right to refuse to care for their children and thus allow them to die.

But while Locke implied this argument, he did not elaborate it explicitly.  The first clear statement of the causal responsibility for parental care from the creation of peril was in William Blackstone's Commentaries on the Laws of England (1765).  In his chapter on the rights and duties of parent and child, Blackstone explained:

The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation, says Pufendorf, laid on them not only by nature itself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish. by begetting them therefore they have entered into a voluntary obligation to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved.  And thus the children will have a perfect right of receiving maintenance (1979, 1:435).

Blackstone added to the parental duty for maintenance of the child the duties to protection and education.

Desyllas sees here the essential elements of the causal parental responsibility argument:

1. As a result of their action of bringing children into the world, parents are responsible for their children's condition of helplessness.

2. If parents were to fail to care for their children, the result would be that the children would perish.

3. Therefore, parents have an obligation to maintain their children to prevent this from happening.

A Lockean liberal government can rightly enforce this parental duty to care for their children and the right of the children to receive such care under the principles of no-harm and kin-altruism.  Therefore, DR is wrong in arguing that Lockean liberalism cannot legally enforce the parental duty to care for their children.

Indeed, liberal political thinkers have generally recognized the need for the legal enforcement of parental care.  For example, in his Lectures on Jurisprudence, Adam Smith observed that as a matter of general legal practice in civilized societies, the duties of familial care are often legally enforced.  Similarly, in The Constitution of Liberty, Friedrich Hayek argued that while it is usually in the best interest of children to be left to the care of their parents or guardians, 

this does not mean that parents should have unrestricted liberty to treat their children as they like.  The other members of the community have a genuine stake in the welfare of the children.  The case for requiring parents or guardians to provide for those under their care a certain minimum of education is clearly very strong (377).

Moreover, it is clear that DR's teleoformalism generally agrees with Lockean liberalism in seeing the private sphere of life as a realm of liberty.  DR writes: "Other than the rules of non-interference and kin altruism, the private sphere is the place of liberty to direct one's life as one sees fit: what books and media to consume, what sexual activity one wishes to partake, religious practice, hobbies, amusements and entertainment are completely free from state regulation.  Even the wish to not pursue the human good is of no concern to justice."

THE THIRD PRINCIPLE OF JUSTICE

The third principle of justice is that there should be reciprocity or mutually beneficial voluntary exchanges in the commercial sphere.  According to DR's teleoformalism, the state must regulate the commercial sphere to facilitate these reciprocal exchanges.  "All of the contemporary ways the state regulates business-contract enforcement, union rights, workplace conditions, environmental regulations, nondiscrimination, health regulations--are perfectly just under teleoformalism."

By contrast, DR argues, "although Arnhart includes property and trade among his natural desires, his theory that justice merely entails these desires be allowed to occur cannot accommodate Norms of trade be enforced, and relies on a caveat emptor system where fraud and cheating may be rampant."  But DR cannot cite me as ever having said this.

On the contrary, as I have made clear in my chapter on Adam Smith in Political Questions: Political Philosophy from Plato to Pinker (4th edition, 2016), classical liberals like Smith recognize that markets must be regulated by the rule of law.  For example, in The Constitution of Liberty, Hayek observed: "If there is to be an efficient adjustment of the different activities in the market, certain minimum requirements must be met; the more important of these are, as we have seen, the prevention of violence and fraud, the protection of property and the enforcement of contracts, and the recognition of equal rights of all individuals to produce in whatever quantities and sell at whatever prices they choose" (229).

THE FOURTH PRINCIPLE OF JUSTICE

According to DR, the fourth principle of justice is supporting cooperative conventions in the public sphere that allow the cooperation of strangers in public spaces.  Following Ruth Millikan ("Language Conventions Made Simple"), DR recognizes that language is one of the most important examples of  cooperative conventions:

These are common rules that allow mutually beneficial cooperation to occur among strangers.  The conventions are widely distributed so that even people who do not know each other can be on the same page and not have to create mutual understanding over and over again with each new interaction.  Language conventions such as using the word "dog" to refer to dogs are the clearest example.

Another example that he takes from Millikan is driving on the right or left side of a road.  This allows drivers approaching one another to coordinate with one another for safe driving.  To achieve regular conformity to this rule, governments have mandated it as a traffic law.

Classical liberals like Locke explain the "cooperative conventions" that establish "common rules that allow mutually beneficial cooperation to occur among strangers" as arising from popular consent.  Locke's teaching that government arises from the consent of the people is well known.  But it's not well known that Locke explained the emergence of all social institutions as created by popular consent.  Human beings have created not only government (ST, 95-99) but also languages (ECHU, III.2.8), families (ST, 74-83), morality (ECHU, 28.10), and money (ST, 36) by consenting to their existence.  This creation of social institutions by consent expresses the uniquely human capacity of the mind for symbolic thought.

Symbolic thought allows human beings to create laws as moral rules for choosing sides in conflicts by impartial rules of action.  Classical liberals recognize that the history of law shows a transition from the illiberal conception of laws as identity rules to the liberal conception of laws as impartial rules.  Henry Sumner Maine called this the move from status to contract.  

In medieval and early modern Europe, for example, the laws were applied differently based on one's social identity.  In many parts of Europe, the nobility either did not pay many taxes or were assessed at a lower rate of taxation than were commoners.  Under the criminal law, the punishments for nobles were less severe than for commoners.  Jews, Protestants, and Catholics faced different treatment by the law.

But Lockean liberals agree with Peter DeScioli that "laws as identity rules" are what he calls "fake laws that are really threats in disguise" that support the dominance of powerful factional coalitions--such as the "nobility"--against "commoners."  Originally, in prehistoric forager societies, the many (the commoners) enforced impartial customary laws against dominant individuals and the ambitious few.  But then with the emergence of centralized states, kings, nobles, and priests were able to enforce fake laws that were really threats to suppress the many.  In a few more liberal societies (like ancient Athens), laws as impartial rules could restrain to some degree the dominant power of the one and the few, which restored to some extent the egalitarian liberty of the foraging state of nature.

Then in modern liberal states, the laws are understood as general rules that apply impartially to all regardless of differences in social status, which goes even farther towards approximating the equal liberty of the evolutionary state of nature.  These are what Douglass North and his colleagues called "open access societies."  Laws as general rules are crucial for the liberal conception of the state as securing individual freedom and social cooperation.  This liberal understanding of the laws as impartial rules of action approximates the law of nature as it arose in the evolutionary state of nature.

 

THE NATURAL DESIRES AS THE MOTIVATIONAL GROUND FOR THE FOUR PRINCIPLES

Although I agree with all four of DR's principles of justice, he fails to recognize the motivational grounding of those principles in the natural desires.  Understanding these principles will not move us to act in accordance with them.  As Aristotle said, "thought by itself moves nothing," because any human action that is deliberately chosen requires a union of reason and desire.  A deliberate choice manifests either "desiring reason" or "reasoning desire" (NE 1139a36-b6).  

DR disagrees, because he thinks that as long as we understand the principles of justice as natural norms, "there is no need for the messy quagmire of sorting through desires for the good."  Really?  Why would we act to fulfill those principles if we thought their fulfillment was not desirable?

Why do we act to fulfill the principles of tit-for-tat non-interference and reciprocal altruism?  Because they satisfy our natural desire for justice as reciprocity.

Why do we act to fulfill the principle of kin selection?  Because it satisfies our natural desires for parental care and familial bonding.

Why do we act to fulfill the principle of cooperative conventions?  Because cooperative conventions as impartial rules of action satisfy our natural desire to be free from the exploitative dominance of powerful factional coalitions.

Why do we pursue the good of justice?  Because the good is the desirable.

REFERENCES

Alexander, Larry. 2017. "Duties to Act Triggered by Creation of the Peril: Easy Cases, Puzzling Cases, and Complex Culpability." In The Ethics and Law of Omissions, eds. Dana Kay Nelkin and Samuel Rickless, 180-196.  Oxford: Oxford University Press.

Blackstone, William. [1765] 1979. Commentaries on the Laws of England. 4 vols. A facsimile of the First Edition of 1765-1769. Chicago: University of Chicago Press.

Desyllas, Jake. 2025. "What Is the Libertarian Theory of Parental Obligation?" Journal of Libertarian Studies 29 (1): 186-209.

Hayek, Frederich. 1960. The Constitution of Liberty. Chicago: University of Chicago Press.