Hart on Rawls on liberty Notes for December 5

Main points

We discussed Hart’s critical review of Rawls’s treatment of liberty. I have two reasons for doing that. First, as should be evident by now, I think that challenging a philosopher’s arguments is the best way of learning the philosopher’s ideas. These guys expressed their ideas through argument; we only understand them on their own terms if we challenge those arguments. Second, I think that many of Hart’s observations are interesting apart from any light they throw on Rawls.

Oh, and one last thing. Hart is a model of decorum. Every time I read this, I resolve to try to treat the thinkers I discuss with as much insight and respect as he showed to Rawls.

Hart’s basic points

Hart takes aim at two phrases in the final statement of Rawls’s principles of justice: (1) each person has a right to “the most extensive total system of equal basic liberties” and (2) “liberty can be restricted only for the sake of liberty.”

Concerning the first, Hart noted that one person’s rights limit another’s liberties. Since that is so, he doubted that it makes sense to try to aim for the most extensive system of liberty. Rather, the question is whether one liberty is more valuable than another. This, he maintained, is the only way to resolve conflicts among the rights on Rawls’s list of basic liberties.

Concerning the second, Hart brought up a range of cases in which the liberties on Rawls’s list of basic liberties conflict with other worthy social goals and rights that are not on the list. He expressed doubt that Rawls really meant what his doctrine literally states. For example, if basic liberties can only be sacrificed for the sake of other basic liberties, then it should not be possible to limit the liberty of speech for the sake of protecting privacy, as privacy is not one of the basic liberties. The natural way to resolve this sort of question is to ask what the parties in the original position would decide. But is it obvious that they would be able to decide about the appropriate balance between free speech and privacy?

We closed with the question of whether Rawls had shown that liberty cannot be sacrificed for the sake of economic benefits. Hart’s comparison of A and B (p. 554) is an excellent example of how to use the original position to answer a question. Hart’s own conclusion, of course, is that the parties cannot say which worst outcome would be worse and so the maximin rule does not tell them whether they should opt for the worst outcome with the priority of liberty or the worst outcome without it.

Section 82** Added December 6.

The original (1971, white cover) and revised (1999, purple and green cover) versions of A Theory of Justice are largely the same. One place where they differ is section 82. And those differences have some bearing on the Hart article. (I’m putting copies of both on the sakai site.)

In the original edition the second through fourth paragraphs of §82 present a psychological theory about people’s tendency to value liberty more as their society’s economic development advances. Rawls says there are two reasons why people value liberty: it enables them to pursue their deepest interests, as liberty of conscience allows people to pursue their religious beliefs, and it enables them to have self-respect.

The revised edition gives more prominence to a slightly different psychological theory meant to explain why people value liberty. One part of this theory holds that we want liberty in order to pursue our fundamental aims, such as a particular religious faith; this is like what he said in the original edition. Another part maintains that we have an interest in being able to freely choose our values; so we would want to have the liberty to do that. Finally, Rawls maintains that people want to take part in politics; this explains their desire for political liberties. The doctrine about economic development is still there, but expressed in terms of this psychological theory (see the fourth paragraph).

The fifth through tenth paragraphs are all substantively the same in both editions. There are a couple sentences in the ninth paragraph that are different. But other than that they appear to be the same.

In the fifth paragraph, Rawls considers an objection: even if people don’t care about absolute gains in material wealth (after their societies have reached a certain level of economic development), they care about relative measures (how much they have compared with one another) and so will want gains in wealth even at the expense of liberty. In part, this looks like a narrow objection aimed at Rawls’s claim that the parties in the original position would choose his principles. The idea behind the narrow objection is that the parties in the original position would not give priority to liberty over economic wealth as Rawls says because they would know that people actually want wealth more than liberty. But it also looks like a broader objection to egalitarian views more generally: that they encourage people to focus on material wealth at the expense of liberty.†† Remember that communism was sort of a live option at the time.

Rawls’s answer to this objection is that people in what he called a “well-ordered society” (that is, one governed by his principles of justice) would get their sense of self-respect from their status as equal citizens and so would not be fixated on their neighbors’ material wealth and opportunities. Since they get their sense of self-respect from their possession of equal personal liberties and political rights, they would not want to give those up in exchange for material opportunities or goods.

Finally, in the ninth paragraph, Rawls takes up another objection: it’s possible to secure self-respect in hierarchical societies, without equal rights. For example, this can be done if the members of the hierarchical society believe that the hierarchy is natural. They get their self-respect from occupying their appropriate station in life. Plato, for instance, hoped that people would think this way: that’s the thrust of the myth of the metals.

Rawls’s response is that social institutions are not, in fact, naturally fixed like this. He adds that the parties in the original position are not allowed to assume that they could make their society work by encouraging false beliefs among their members. I’m not sure how responsive that is: the original point is that false beliefs can make a hierarchical society stable and give its members a sense of self-respect. The fact that the parties are forced to make their decisions public doesn’t show that such societies are impossible or even that they are bad. It just means that Rawls ruled that possibility out at the beginning (by imposing the publicity condition on the original position). This is our old dispute about truth, publicity, and esotericism raising its head again.

Key concepts

  1. My rights limit your liberty. (Bearing Callum’s qualifications in mind, of course.)
  2. The variety of conflicting rights that Hart points out.
  3. Hart’s way of framing the question facing the parties in the original position about whether to allow trade-offs of basic liberties for the sake of economic benefits (p. 554).
This page was written by Michael Green for Social & Political Philosophy, Philosophy 33, Fall 2012. It was posted December 5, 2012 and updated December 6, 2012.
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