Hart, Herbert - Rawls on Liberty and Its Priority

01/22/2010

Essay 10, Essays in Jurisprudence and Philosophy, Oxford University Press 1984

In this essay originally published in 1973, author does a careful reading of John Rawls' A Theory of Justice, in particular the principle that 'liberty can only be limited for the sake of liberty'. Author first outlines the fundamental parts of Rawls' argument:

The Main Idea: the principles of justice rely on rational actors being in a 'original position' behind a 'veil of ignorance', not knowing what roles they will take (or what kinds of people they will be) in the society they are agreeing to form the rules for. (pg224) From this, Rawls moves to the General Conception of justice, which is that all 'social values' will be distributed equally, unless distributing them unequally leads to everyone's advantage. Rawls' also had a special conception of justice which placed liberty as the primary social good. The special conception had the first principle:
"Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all" (pg225) This principle, Rawls argues, would be the considered outcome of rationally self-interested agents in the original position. This principle has priority over all other social values/goods.

Because liberty takes priority over all other social goods, Rawls argues that it can only be restricted for the sake of further liberty. The first problem author raises is the broadness of the term-- does it imply no such thing as private property (an obvious case of having far more liberties vs others')? (pg227) Author believes Rawls alters liberty to be liberties, a collection of them that includes private property, voting and legislative rights, freedom of speech and assembly, freedom of conscience and thought, and freedom of person (pg229). Author believes that enumerating liberties has limited the scope of the liberty principle to those liberties (and possibly others-- the list is rough). Author argues this for two reasons:
1) Rawls avoids the dilemma of liberty and private property by using a distinction between liberty and the value-of-liberty. For things like personal property, the value of the liberty exercised doesn't have to be equal. It can be unequal. However, for other liberties like voting, the value of the liberty must be equal. So employing this distinction shows that Rawls is paying attention not just to vaguely defined liberty, but to specific liberties. (pg229)
2) Rawls seems willing to allow for privately owned means-of-production. Author thinks that this wouldn't comport with "the most extensive liberty" taken as a whole, and not as specific liberties. (pg230)

The bulk of the paper is devoted to understanding how to "limit liberty for the sake of liberty" (pg233). In the simple case, there can be rules of order in conducting a public debate-- where people's liberties to speak when they please is limited because of an interest in allowing people to be free from interruption (for a period of time). Even this uncontroversial case is misleading, author argues. What is being secured by rules of order is not greater liberty, but something more valuable or 'profitable', namely the right to take time to formulate a complete thought without interruption.

The trouble here is that Rawls wants to keep liberty as the priority and that restrictions on it that aren't related to furthering liberties need scrutiny or to somehow show a relation to greater liberty. But author argues that this isn't possible in many cases (pg234-8). Author argues the problem becomes greater when an elected representative must consider how to adjudicate between liberty trade-offs, and must consider it from the standpoint of 'the representative equal citizen' (pg235). Author argues that different people are going to give differing weights to liberties, therefore making the 'common good' argument inaccessible as a decision procedure where only liberties are being weighed. (pg236) Author claims it is easy to see how there can be a conflict of liberties given particular temperaments and that justice might then become indeterminate, if liberty can only be traded-off against other liberty. (It certainly might become determinate if you could use other factors-- author's main contention).

On the other side, often liberty is restricted because of other social values or benefits that accrue because of it, and that are unrelated to liberty, at least directly. For instance liberty is often restricted to prevent harm or suffering. Author argues that to claim that harm done to x is a restriction of x's liberty seems to be a stretch. (pg239) It might be possible to claim that 'natural duties' between persons would fill-in where the argument from the special conception of justice does not, but author thinks this will not do because it is too weak. (pg240) The general case the author makes is that a decision procedure based solely on liberty trade-offs (and maybe natural duties) will not be robust enough to settle a variety of cases from the original position. "...it confers on individuals the advantage of that liberty, but secondly it exposes them to whatever disadvantages the practices of that liberty by others man entail for them" (pg241-3)

The final part of the paper involves a critique of the reasons offered for the special conception of justice, whose first principle is that liberty can only be traded-off for other liberty. Author claims that Rawls' reasons are as follows: Once a society reaches a certain level of material or economic prosperity, its members will become less motivated by further material attainment and liberty will become the most prized. Author questions this, asking why people would want to put a restriction on trading their liberties for other benefits because, at some later point, they'll want those liberties back. (pg244-5)