Hart raises questions about how Rawls formulates the priority of liberty and about how he argues for this priority.
Specifically, Hart claims not to be able to understand Rawls’s rule that “liberty may be restricted only for the sake of liberty.” In most political decisions, protecting one person’s liberty involves restricting another’s and there is rarely any sensible way of describing one alternative as involving “more extensive” or “greater” liberty.
Hart also claims that the rule is too strong. There are lots of reasons to restrict liberty that seem eminently sensible. In particular, Hart doesn’t see how the parties in the Original Position could know that they would find it worse to desire liberty in a society that had decided to pursue economic growth instead than it is to desire wealth in a society that had decided to respect liberty instead.
Rawls does have a response to the last point. It is that the parties will be told that, after a certain level of wealth has been acquired, people will want liberty more than they want more wealth. If the parties believe that, they will choose rules that give a preference to liberty over wealth, at least for societies that are wealthy enough.
This reply, of course, raises its own questions.
First, is it true? It has to be true pretty much across the board, otherwise we’ll be in the situation where one part of the society prefers liberty, the other prefers wealth, and the parties in the Original Position can’t tell which kind of frustration would be worse.
Second, if it is true that the members of the society overwhelmingly prefer liberty to wealth, why bother with a rule blocking them from making a contrary decision? Perhaps the idea is to prevent powerful minorities from frustrating the desire for liberty.
Third, the answer to Hart’s question about the priority of liberty comes from outside the Original Position. The parties are said to know that it would be worse to have one’s desire for liberty frustrated than to have one’s desire for wealth frustrated because they know facts about human psychology. In other words, the parties simply affirm what they’re told. Could we just do without the Original Position, then, and look at the facts about what people want?
The Federal Reserve came up when I tried to illustrate why people might prefer giving up political liberty for economic reasons. The citizens of the US created an entity, the Federal Reserve, that is largely immune from political influence. Its immunity is important for its working, at least in part because it has to be perceived to be free from political influence.
But what is the Fed? Is it public or private? We asked and I said I didn’t know. I still don’t. According to its website, it is “an unusual mixture of public and private elements”. Ooohhh kaay.