We discussed Hart’s critical review of Rawls’s treatment of liberty. I have three reasons for doing that. First, I think that challenging a philosopher’s arguments is the best way of learning the philosopher’s ideas. I am not sure that Mill was right to suggest that vigorous debate is the best way of learning about nearly anything. But it does seem especially apt for learning philosophy. These guys expressed their ideas through argument and 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. Finally, Hart is a model of decorum. Every time I read this, I resolve to try to treat others with as much insight and respect as he showed to Rawls.
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.
We largely backed Rawls in discussing Hart’s criticisms. We considered several examples of balancing liberty against other aims and asked whether the parties in the original position could know which worst outcome would be worse for them. In every case, we thought, they could come to a conclusion. That suggests the original position is a genuinely useful device, contrary to Hart’s suggestion.
For example, when talking about Adam’s example of campaign finance reform, we were nearly unanimous that it would be worse to be a poor person shut out from the political system dominated by the rich than it would be to be a rich person shut out from the political system dominated by the non-rich.
On the topic of trading off liberty for wealth, Dixie thought Hart was being unfair by picking some of Rawls’s liberties out of his list. So Hart said that he did not think it was necessarily irrational for the parties in the original position to trade off political rights for greater economic wealth. (His point was that the parties could not tell if they would genuinely want to give liberty priority like this or not.) Hart did not ask whether the parties would be willing to give up the right against, say, arbitrary arrest or other kinds of abuse; he left those in place. Dixie thought that was not fair to Rawls.
I didn’t see it that way myself, but I concede that she had a good point when she said that the rights against abuse are prone to being lost by people who do not have a say in the political process. So, while we might split up Rawls’s list of basic liberties in theory, in practice we would want to keep them together.
Jiacheng reminded us that countries like China and Singapore seem to have made a decision to trade off political rights for economic welfare. It is a little tricky to say whether that poses a challenge for Rawls or not. Rawls drew a distinction between what he called the general conception of justice and what he called the special conception of justice. The idea was that personal liberty could be sacrificed for material gain until society reaches a certain level of wealth; then liberty would take priority. For those attempting to apply Rawls’s philosophy to China, the first question to answer would be whether the general conception applies there or not.