Hart on Rawls – 3

More on Hart and his 1973 paper on John Rawls’s A Theory of Justice. Hart put forward five queries, of which I’ve now covered the first two:

  1. Liberty or liberties?
  2. Restricting liberty for liberty’s sake In the second post in this series, we saw that the idea of restricting one liberty for the sake of another raises commensurability issues. In his reply to Hart, Rawls addressed these – partially addressing Hart’s first criticism in the process – by introducing the metric of ‘significance’.
  3. Restricting liberty for harm’s sake Rawls appears not to grant that liberties should sometimes be limited for harm-related as well as liberty-related reasons. Is this sustainable?
  4. Choosing (more) liberty Rawls argues that subjects in the original position would, in their own interest, tend to choose more rather than less extensive liberties. Given the potential adverse effects of liberties extended to the whole of society, is this valid?
  5. The priority of liberty Following on from the previous point: Rawls appears to believe that, all else being equal, subjects in the original position would choose a quantum of liberty over a quantum of material benefit. Is this an unstated presupposition on Rawls’ part? How is our perception of his model affected if this is granted?

Now for #3.

Restricting liberty for harm’s sake
Although (as we have seen) Rawls later modified this position, in the first edition of A Theory of Justice he argued that a basic liberty could only legitimately be curtailed for the sake of another basic liberty – or rather, for the sake of bringing about a more extensive and/or more equal distribution of basic liberties. As Hart pointed out, this implies that it is possible to weigh up basic liberties against one another, a problematic position which I covered in the previous post. Hart also criticises this position on the grounds of what it does not include: specifically, it makes no provision for restrictions to basic liberties for the sake of preventing harm, or (more broadly) in order to restrict or regulate behaviour which causes loss, pain or suffering to others.

This is a fairly big deal. The possibility of living together in freedom and under law has been a focus of political philosophy since Kant. If we say, broadly following Kant, that the law should protect each individual’s right to pursue his own interests without prejudice to anyone else’s right to pursue theirs, we run into the problem that interests conflict. I stress ‘conflict’ as distinct from ‘compete’: competing interests, as between two companies in the same line of business – where the parties have a rivalrous interest in the same resource – pose no problem in theory. Conflicting interests arise when the parties define the situation differently, as between a business (with a legitimate interest in maximising profit) and a trade union (with a legitimate interest in protecting its members). The problems this situation poses are, fairly clearly, political problems, with no easy answer on the philosophical plane. We could lower our sights somewhat and go with Mill, arguing for complete freedom of action up to the point where another person is harmed – a position which has entered the language in the formulation “The right for me to swing my fists ends where your face begins“. But, despite its surface plausibility, this gets us no further forward, as it depends entirely on interpretation of the word ‘harm’. Define ‘harm’ as actual physical harm and many undesirable activities would be permitted, from harassment to the sale of contaminated food. Define ‘harm’ as the setting back of interests and we’re back with Kant. Should trade unions be banned, as their tendency is to raise members’ wages, lower the amount available to pay dividends and hence harm (set back the interests of) shareholders? Should shareholders be expropriated, on the grounds that their extraction of value from businesses tends to lower the amount available to pay wages and hence harm (set back the interests of) workers? I’m not familiar enough with Mill’s work to say how he would have answered these questions, but I’m fairly confident that it would have been a political answer, rather than one dictated by the terms of the question.

There is no theoretical or practical difficulty encroaching on liberties so as to prevent harm; societies do it all the time. However, justifying those restrictions in a coherent and generalisable way has proved to be a serious challenge for political philosophy. Rawls, oddly, doesn’t seem to say much about it, other than to rule it out on principle – because a liberty should only be curtailed for the sake of a liberty (of greater significance). Can this be accepted, and if so how? Hart canvasses two – unsatisfactory – solutions, to which I’ll add another couple.

  1. They’re all liberties! Perhaps, when we curtail a liberty so as to prevent harm, we are actually doing so for the sake of another liberty. Steal my car and my effective liberty to exercise property rights is curtailed; hit me hard enough and my effective liberty to participate in society becomes moot, at least temporarily. Hit me when doing something you want to deter (voting, say) and the fear of future harm may have even more liberty-impairing effects. In other words, might harm be derivative of impairment of liberty? The argument is superficially attractive but ultimately implausible; as Hart comments, the actual valuation of injury and harm is clearly independent of any consequential liberty-impairing effects they may have. I would add that the argument is also covertly circular, inasmuch as liberties would be meaningless if we were not vulnerable to harm from one another. If property were inalienable (or all property were held in common), there would be no need for a right to property; if incitement could never result in injury, there would be no need to restrict speech and hence no need for a right to free speech.
  2. …unless they’re duties. In addition to the basic liberties, Rawls suggests that subjects behind the veil of ignorance would take on certain natural or moral duties, judging that the benefit to all from doing so outweighed the costs; examples include the duty to aid those in need and the duty not to cause unnecessary suffering. Clearly, the existence of duties would have some liberty-curtailing effects. Arguably this is unsatisfactory on grounds of theoretical parsimony; it certainly suggests that the ‘only curtail liberties for the sake of liberties’ formulation might need to be amended. In any case, the range of natural duties seems far too narrow to cover all those cases in which unrestricted liberties could foreseeably cause avoidable harm, from invasion of privacy to exhibitionism.
  3. We’re all citizens here. Perhaps Rawls overlooked the prevention of harm because, within his scheme, harm wasn’t relevant. He was designing a model to be inhabited by full citizens in effective possession of their liberties; a citizen convalescing in hospital, or immobilised by car theft, is not effectively a full citizen, and as such is of no relevance to the model. All we can do is hold their place in the model open for when they’re ready to occupy it again. The point could even be generalised to cover harms which do not directly attack liberties: a citizen recovering from a head wound may still be able to take part in political deliberations, but her mind won’t really be on the task in hand. This is probably the weakest solution of all: the point is, of course, to prevent one’s citizens from suffering these interpersonal harms in the first place, and one could well argue that a scheme of liberties which doesn’t do this job isn’t worth the candle – particularly if one were sitting in a planning meeting with a bandaged head at the time.
  4. …unless we’re minors. In the context of the second point here, Hart notes that Rawls acknowledges the existence of duties owed to the non-human world, “which are outside the scope of a theory of what is owed to a rational individual”. Building on this suggestion, we can imagine a modified combination of the first and third solutions, which would tie liberties to citizenship. In this model, criminal harms would be conceived as attacks on liberty-enjoying citizens, thus meeting Hart’s objection to the first solution – that our valuation of harms does not depend on their consequential liberty-impairing effects. Conversely, those who are routinely deprived of liberties – minors, prisoners, hospital patients etc – would be seen as deprived of citizenship because unable (for the moment) to exercise it effectively. Restrictions on liberties implemented in order to protect free citizens from harm, or to restrain those not able to exercise the liberties of citizenship effectively, could then be defined as restrictions on liberties for the sake of liberties, as Rawls would (presumably) wish. This is ingenious (if I say so myself) but unsatisfactory. Although it accounts for the assimilation of harms to attacks on liberties, it does so at too high a cost: the implication that prisoners, hospital patients et al are non-citizens is troubling, and the further implication that harms to those people are of less account is unacceptable. This model also fails to account for (among others) students, employees and the patients of psychoanalysts, all of whom are free citizens who are routinely subjected to un-lawlike regulation of their movements and activities.

It’s all rather unsatisfactory, and I’m afraid that’s how I’m going to have to leave it – Rawls’s 1982 lectures are as far as I’m going for further reading at the moment, and he makes no reference in them either to original-position duties or to the prevention of harm. Fortunately he’s a bit more forthcoming on Hart’s next question.

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