We discussed Hart’s critical review of Rawls’s treatment of liberty. Rawls took this article very seriously and made several important modifications in his theory in response to it (see Rawls 1993, 289–372).
Hart poses questions about how Rawls thinks about liberty and about the priority that Rawls gives to what he calls the basic liberties over other aims that a society might want to pursue, such as protecting privacy or improving the standard of living.
Hart’s questions take Rawls’s theory a just a little out of context. Here is what I mean. Rawls’s arguments are mostly meant to establish the superiority of his principles of justice over utilitarianism. So, for example, one objection to utilitarianism is that it might sacrifice individual liberty for the sake of the greater good. Rawls’s principles give priority to individual liberty over the greater good and so that is a reason to prefer them to utilitarianism. That is the way Rawls argues.
What Hart is doing is looking at Rawls’s discussion of liberty on its own, apart from the contrast with utilitarianism. That is fair: I am sure that Rawls wanted his principles to stand on their own. But A Theory of Justice really was built around drawing a contrast with utilitarianism.
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? Which is worse: wanting to prevent publication of private information in a society that has very broad rights for the press or wanting to learn information that the press cannot print out of concern for privacy rights? Hart doesn’t think the parties in the original position could possibly have an opinion. They aren’t given enough information. (And there may well not be an answer for them to know: some people prefer more freedom for the press, others prefer more privacy, and there is no fact about which one is correct.)
We did not talk about 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 is an excellent example of how to use the original position to answer a question (Hart 1973, 554). 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 talked a lot about political liberty. Rawls listed two things under political liberty: the right to vote and the right to be eligible for public office. The right of free speech and assembly should probably count as political rights as well. So he is obviously assuming that the state will be a democracy. But Samuel and Aaron thought there would have to be more to it than this. Samuel worried about the influence of money on politics. Is there an equal right to participate in politics when the wealthiest people have far more influence on government than everyone else?
Aaron noted that Hart referred to a distinction in Rawls between liberty and the value of liberty (see Hart 1973, 540); he thought that might be relevant. Indeed it is. When we followed up on the references, we saw that Rawls went beyond just saying that everyone has the same right to vote (Rawls 1999, 197–98). First, he noted that the difference principle limits economic inequality. That, in turn, will limit the extra influence that the rich can have over the state. Second, he advocated public financing of political parties.
Those are fine points, but you might wonder whether this is enough. If rich people own newspapers (or whatever replaces them), they are going to have more influence on public life than people who do not. There is really no way to cure that short of curtailing freedom of speech and the press to a probably undesirable degree.
My initial reaction to this was to say “well, Rawls has enough on his plate without having to solve all of the problems of democracy; let’s cut the man a break.” But having chewed it over, I now think that Samuel and Aaron are right to say that this is actually a question that he is obliged to deal with. He proposed that both free speech and equal political participation are basic liberties. Yet they are in tension with one another. How does he propose to resolve the tension? That is a legitimate question.
I think this illustrates a general point that I keep coming back to. Rawls’s theory was geared towards developing a contrast with utilitarianism. Utilitarianism could allow the curtailment of political rights. Rawls’s principles do not allow that and so, he argued, they would be preferred by the parties in the original position to utilitarianism. You get the idea of the argument even if you have only a general understanding of exactly what rights we are talking about; you will be persuaded if you think there are some rights that should not be violated. The kind of question that Samuel and Aaron were posing comes up when you put the contrast with utilitarianism to one side and look at exactly how his system is supposed to work.
Hart, H. L. A. 1973. “Rawls on Liberty and Its Priority.” University of Chicago Law Review 40: 534–55.
Rawls, John. 1993. Political Liberalism. New York: Columbia University Press.
———. 1999. A Theory of Justice. Revised edition. Cambridge: Harvard University Press.
There was a handout for this class: 27.RawlsHart.handout.pdf