Hart made at least three points about Rawls’s account of liberty.
Hart’s first point attempts to show that Rawls faces a dilemma.
On the one hand, he can say that the parties in the original position seek maximal protection of liberty. Then he would face the problem that Herbert Spencer did: it’s basically Hobbes’s right of nature, wiping out property rights and rights to personal security since these limit liberty.
On the other hand, he can say that the parties in the original position would give priority to a list of liberties. That would not have the problem of simply giving priority to liberty per se. But it would mean that Rawls’s theory would have little to say about the live disputes about liberty such as whether the state can limit liberty for paternalistic reasons, moralistic reasons, and so on.
Following Steve’s suggestion, we talked about how Rawls might address this problem. The parties in the original position would see whether it would be worse to be in the worst-off position under each alternative system: the one where the state can interfere with liberty and the one where it can’t. Then they would avoid the worst worst result.
Michael made a strong case that this could often work. I suspect that sometimes it won’t. Maybe that’s OK. Maybe some of these questions about liberty simply aren’t matters of justice such that a state could legitimately regulate individual liberty or not do so.
The second thing Hart tried to do involved the “first priority rule,” according to which “liberty can be restricted only for the sake of liberty.”
Hart argued that there are many sensible regulations on liberty that do not have this feature. For instance, we punish defamatory speech or uses of private property that violate environmental regulations.
You could say that we do so in order to protect the liberty to live without defamation or the liberty to live in a clean environment. But that would render the rule that “liberty can be restricted only for the sake of liberty” empty since anything could be described as “liberty” in this way. Instead, it’s better to follow the more natural route and say that we regulate free speech and property rights in these ways to prevent harms.
Finally, Hart asked whether it’s obvious that people in the original position would choose a rule giving priority to liberty over gains in economic wealth. They could do so only if they knew that it would be worse to want more liberty than it would be to want more wealth. But, Hart said, it’s impossible for them to know this.
Rawls’s answer appeals to a psychological theory about the relative value of liberty and wealth. I said that this raises questions about the role of the original position.