In his paper on A Theory of Justice, Hart put forward five queries, all of which Rawls (some years later) responded to directly; I’ll incorporate some comment on Rawls’s responses as we go along.
Hart’s questions can be summarised under the following headings.
- Liberty or liberties? Is Rawls talking about a single quality of liberty which takes multiple forms, or about multiple discrete liberties? If it’s the latter, what are they and where do they come from – and what implications does Rawls’s selection of specific liberties have for his model?
- Restricting liberty for liberty’s sake Rawls argues that the only justification for limiting a liberty is an overall extension of liberties. What issues does this raise in terms of resolving potential conflicts between liberties?
- 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?
- 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?
- 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?
For reasons of space and time, in this post I’ll only address the first of these. (Whatever else you can say about Hart, his writing is extraordinarily good to think with – particularly when he’s got something as substantial as A Theory of Justice to chew on.)
Liberty or liberties?
This may be little more than a textual quibble. Rawls’s response (in “The Basic Liberties and Their Priority”) can certainly be read in this way:
the equal basic liberties in the first principle of justice are specified by a list … No priority is assigned to liberty as such, as if the exercise of something called “liberty” has a pre-eminent value and is the main if not the sole end of political and social justice. … Hart noted, however, that in A Theory of Justice I sometimes used arguments and phrases which suggest that the priority of liberty as such is meant; although, as he saw, this is not the correct interpretation
Rawls goes on to characterise the ‘basic liberties’ as (in crude terms) means to an end rather than ends in themselves – the point is not to achieve an equal distribution of liberties for its own sake but to establish the conditions of possibility for the collective construction of a just society and for collective deliberation on ideas of the good. Rawls proposes an equal distribution of basic liberties not as an end state, but because it is among those conditions of possibility – or, perhaps, a necessary condition for the eventual development of those conditions of possibility. We are a long way from a utilitarian framework of the maximisation of capital-L Liberty, in other words.
I’m not sure that this disposes of Hart’s comments, though. The question concerns the fungibility of a generic liberty (I’ll refer to this as Liberty) – or, to put it another way, the commensurability of distinct liberties. Declining to specify an optimum scheme of basic liberties, Rawls argues that multiple alternative configurations or schemes of liberties may be equally valid. However, this implies that a restriction of one liberty may be compensated by an expansion of another, which as a minimum implies that different combinations of liberties may have the same beneficial effect. The model does not require simple commensurability between liberties (a bit more freedom from arbitrary arrest is worth a bit less freedom of expression). However, it does seem to imply that Liberty is somewhere in the background, being enhanced by the expansion of one liberty and reduced by the restriction of another. At least, it suggests an underlying resource of interchangeable Liberty-stuff, such that – given satisfactory levels of two different liberties – the overall settlement could only be improved by increasing one without lessening the other. If Liberty is seen as a single state or goal, approached in different ways through the instantiation of different liberties (each producing its own contribution of Liberty-stuff), it follows that some individual liberties may be much less effective in its realisation than others; some may even be expendable. This is the case even if we know what we mean by Liberty.
A realised state of Liberty is (more or less by definition) unknown to us, however. It’s safe to assume that liberties we have not considered may deserve a much more prominent place in our thought and action. In this context, Hart has an interesting passage on Rawls’s comments on lifestyle-related freedoms – in sexual conduct, drug and alcohol use, and so on – which he does not elevate to the level of a basic liberty. This may be explained by referring back to the civic focus of the basic liberties – seen as preconditions for the development of a just community rather than as individual liberties tout court – although the idea that sexual identity is irrelevant to public deliberation was not universal even in 1973.
Conversely, some of what we now consider to be liberties may well be irrelevant to the achievement of Liberty, or even counter-productive. Citing Rawls’s reference to a ‘principle of greatest equal liberty’, Hart refers to a Kantian model of universal freedom under a common law advanced by Herbert Spencer. Spencer’s critics, including Henry Sidgwick, pointed out that the institution of private property represents a stumbling-block for any pure theory of freedom: in the simplest form it represents a hard limit to individual freedom, expanding the freedom of the owner and reducing that of everyone else. (In less simple forms, private property brings with it inherited wealth, the accumulation of capital and wage labour, all of which bring their own forms of unfreedom.) Spencer’s response to this critique was to admit its force and revise his model, arguing that the greatest equal liberty would only be attainable when all property was held in common.
The value of the right to property in Rawls’s model is circumscribed, inasmuch as there is no basic right to individual ownership of the means of production: a ‘Rawlsian’ society may have an entirely state-owned economy. However, Rawls resists Spencer’s move, including the right to own personal property in his brief list of basic liberties. This is certainly justified on pragmatic (and on Pragmatic) grounds, making his model seem less utopian – and hence more useful to think with – than Spencer’s. Whether the liberty to own property (or other discrete liberties) can be justified on other grounds is less clear. As I have argued, although Rawls treats his basic liberties as discrete and distinct, to the extent that they can be balanced against one another there must be a Liberty behind the curtain which they jointly make it possible to approach – or at least a Liberty-stuff which they each in their different ways produce.
If this is the case, the basic liberties are not fundamental, but different aspects or facets of the production of fungible Liberty-stuff, or of the approach to an ineffable Liberty. And if that’s the case, clearly Rawls’s list can’t be taken as definitive; the possibility that it might need to be lengthened, and – more disruptively – the possibility that it might be appropriate to trade down one or more of our current list altogether, can’t be avoided. Might an equal distribution of basic liberties be achievable on the basis of a Fourierian phalanstery, designed to guarantee freedom from want, idleness and anomie, but not too great for political and personal liberties? And if not, why not? To be more precise: given that we’re objecting on philosophical rather than political grounds – political disagreements start some way down the road and should be expressible within the framework we’re developing at this stage – the contention must be that the map of small-l liberties not only should not but cannot be redrawn to that extent. But how can we justify that belief without recourse to political arguments?
One superficially attractive argument justifying a Rawlsian list of basic liberties – and countering ‘fungible Liberty-stuff’ and ‘ineffable Liberty’ arguments – runs like this. Let’s suppose that, somewhere out there in concept-space, there is such a thing as Liberty, although we don’t know what it looks like. However, we do have an idea what freedom of the press, freedom of assembly, freedom of conscience and the rest of them look like. Moreover, we know they’re all valuable: we may be open to the striking of different balances between different liberties, even (perhaps) to the point of suspending one so as to preserve another, but we know that any solution which dispenses with a particular liberty altogether is a bad solution. (At least, it’s a solution with at least one bad feature – that one – and we want to avoid bad features in our solutions.) The difference between ‘balancing discrete liberties’ and ‘fungible Liberty-stuff’ models, in other words, is that the former provides a backstop, or several backstops: these liberties are things we know to be valuable, so we know that no solution in which any one of them is traded off entirely can be satisfactory.
The trouble with this argument is that it’s circular, and rather a tight circle at that. (Why shouldn’t we think in terms of fungible Liberty-stuff? Bad outcomes would result. Why would the outcomes be bad? Because there is no fungible Liberty-stuff.) However, it points the way to an argument or group of arguments which, while they lack the logical closure of this one, may be more persuasive. In its weakest form, the argument draws attention to the fact that Rawls uses a list of basic liberties at a fairly early stage in the development of the argument of A Theory of Justice – not to mention an early stage in the development of the ideal framework of social relations proposed in the book. Perhaps the choice of a list of basic liberties, and scepticism about that choice, are not positions which can usefully be counterposed in argument but simply alternative starting-points, to be judged primarily by their fruits. In other words, to the extent that Rawls makes it work, it works, and challenges at this foundational level are little more than doodling in the margin – or signs that the person putting the challenge may be reading the wrong book (“Aeschylus is so sexist!” – English student, Cambridge (overheard)).
A stronger version of the same argument would return to the first part of the circular argument set out above and plant its flag there. We do know what’s meant by each of Rawls’s basic liberties and we do know that each of them is valuable and therefore worth preserving, all else being equal. By contrast, nobody has ever seen Liberty, and we’ve got no compelling reason to believe in the existence of Liberty-stuff. Direct experience tells us about basic liberties; only human ingenuity tells us about Liberty, and we know how unreliable human ingenuity can be. The alternative to a conservative reliance on the liberties we know, on this argument, is not philosophically-grounded radicalism but reckless concept-mongering. To put it another way, trading a known basic liberty for a speculative increase in Liberty-stuff would be an irresponsible gamble. (Another criticism of Rawls, which I’ll come to in the next post, is that he’s not conservative enough in this respect.)
At its strongest, this argument would take direct aim at the shrouded numinosity of Liberty, asking whether we really have any reason to think there’s anything there. Perhaps the basic liberties have no more in common than a sandwich without mustard and a dog without a lead. Or rather (cutting off a potentially interesting but irrelevant line of questioning), perhaps we have no need to think of the basic liberties as having any properties in common in order to group them together. Perhaps, rather than working on the assumption that there is something positive and theoretically realisable called Liberty, we should think of the basic liberties as a group of absences which we hold to be significant and valuable – just as nitrogen and carbon dioxide share the common property of not being oxygen, rather than that of being saturated with phlogiston. This would, of course, leave open the question of whether Rawls’s list is the right list of basic liberties, but it would make the task of amending the list much more challenging.
Hart’s second criticism… but enough! Not sure how long this series is going to be; all I can say is that the next post will definitely address at least one of the remaining four arguments.