The Implicit Argument for the Basic Liberties

Abstract

Most criticism and exposition of John Rawls’s political theory has focused on his account of distributive justice rather than on his support for liberalism. Because of this, much of his argument for protecting the basic liberties remains under explained. Specifically, Rawls claims that representative citizens would agree to guarantee those social conditions necessary for the exercise and development of the two moral powers, but he does not adequately explain why protecting the basic liberties would guarantee these social conditions. This gap in his argument leads to two problems. First, the Rawlsian argument for the priority of liberty would fail if the gap could not be filled. His argument would still support the protection of individual freedoms, but these freedoms would be treated like other primary goods and regulated by the difference principle. Second, without a full argument, there is not sufficient reason to favor Rawls’s left-liberal conception of the basic liberties over a more right-leaning conception that would prioritize the protection of free-market rights. To address these two problems, this paper fills in the gap in order to better explain Rawls’s full argument for egalitarian liberalism.

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Notes

  1. 1.

    More formally, they guarantee certain conditions necessary for the adequate development and full exercise of our two moral powers. For ease of exposition, I will merely refer to conditions necessary for exercise because development is itself necessary for exercise.

  2. 2.

    For example, neither Samuel Freeman’s Rawls (2007), the Cambridge Companion to Rawls (Freeman 2003), nor the Blackwell Companion to Rawls (Mandel 2014) detail the specific ways that Rawls would defend his list of liberties.

  3. 3.

    In a similar argument, Jeppe Von Platz points out the gap in Rawls’s argument that is the focus in this paper (Von Platz 2014). Samuel Arnold is also concerned with such right-liberal arguments, but he focuses on the ways that they misappropriate the difference principle (Arnold 2013). Daniel Layman grants Tomasi’s conclusion, but shows why it would actually license far more leftist institutions (Layman 2015).

  4. 4.

    This change is in response to criticisms by Hart (1973) and Ladenson (1975).

  5. 5.

    My emphasis.

  6. 6.

    My emphasis.

  7. 7.

    This argument is crucial to the project of Political Liberalism, and I here merely assume that it succeeds (Rawls 1996, pp. 312–324).

  8. 8.

    A similar statement is made in Justice as Fairness (2001, p. 45), and the same connection between the two moral powers and the first four liberties is mentioned later in Political Liberalism (1996, p. 332) and Collected Papers (1999b, p. 417).

  9. 9.

    Thanks to David Reidy and Victoria Costa for emphasizing the difficulties with family life and moral development.

  10. 10.

    Thanks to James Nickels for emphasizing the importance of this point. A more consequentialist alternative would focus on the necessary and sufficient conditions to maximize a society’s proportion of autonomous citizens.

  11. 11.

    Thanks to two anonymous reviewers for raising this point. Perhaps, without proof that no other protections are needed, it is not fully appropriate to say that protecting the six basic liberties ‘guarantees the necessary social conditions'. So, I will instead say that protections of the six basic liberties is ‘needed to guarantee the necessary social conditions’.

  12. 12.

    This point is also consistent with general left-liberal theory that Rawls advances. Recall that Rawls responds to the objection that liberalism only secures negative liberty by saying, ‘the background in stitutions of a property-owning democracy, together with fair equality of opportunity and the difference principle, give adequate protection to the so-called positive liberties’ (Rawls 2001, p. 177).

  13. 13.

    In ‘Introduction to the Paperback Edition of Political Liberalism', and ‘Idea of Public Reason Revisited’, Rawls recognizes that there might be a range of reasonable conceptions of justice as well as one most reasonable conception (Rawls 1996, pp. ii, xlivi–vii, 450, 455). In this paper, I am concerned with detailing the most reasonable conception. How far these arguments extend to limit the range of reasonable conceptions is another matter.

  14. 14.

    A similar quotation is in Justice and Fairness (Rawls 2001, p. 45).

  15. 15.

    This is how Rawls proceeds in Collected Papers (Rawls 1999b, pp. 313, 366, 417).

  16. 16.

    In speaking about his argument from Theory of Justice, Rawls also says ‘Note that, strictly speaking this first ground for liberty of conscience is not an argument’ (Rawls 1999a, p. 311).

  17. 17.

    Daniel Layman offers a similar argument when he reads Rawls as arguing that representative citizens choose to protect a liberty as basic whenever ‘they would not put that liberty at risk for any non-liberty gain’ (Layman 2015, p. 8). Here, the idea is not that the liberties are means for all but that they are incredibly important for some. This improved argument is still problematic for two reasons. First, it supposes that there are some liberties that cannot be substituted by some amount of non-liberty gains, which seems unlikely. For example, there is some price at which most people would give up their political liberties, and those without such a price are too few to motivate representative citizens. Second, the argument would be over-inclusive. If there are some who value the preservation of nature so highly that no non-liberty gains would substitute for protecting nature, would we suppose that we should protect nature with the same priority as a basic liberty?

  18. 18.

    Thanks to Alyssa Bernstein for raising the importance of this point.

  19. 19.

    In Theory of Justice §82, Rawls emphasizes that equality of the political liberty is also important for the social bases of self-respect. I can agree with this point, but it is more important for fulfilling the second principle of justice than the first since the social bases of self-respect are included amongst the primary goods. Thanks to an anonymous reviewer for this point.

  20. 20.

    Tomasi also uses a similar idea when he refers to individuals having adequate evaluative horizons (Tomasi 2012a, pp. 74–82).

  21. 21.

    This argument also helps to explain how freedom of conscience differs from freedom of thought. Freedom of thought is centrally concerned with the expression and dissemination of ideas whereas freedom of conscience is concerned with ways of living. The latter protects actions that are distinct from the expression of ideas such as religious practices and prohibitions.

  22. 22.

    In a helpful article, M. Victoria Costa explains the various ways in which Rawls’s theory might adequately protect freedom as non-domination (Costa 2009). Yet, she focuses on the way in which the equal political liberties reduce the arbitrary power of the state, and the way in which Rawls’s second principle of justice reduces the arbitrary power of individuals. By contrast, I focus on the ways in which the rule of law and the liberty of the person are crucial for protecting against non-domination.

  23. 23.

    See “The Space of Argument” section.

  24. 24.

    Thanks to an anonymous reviewer for identifying this point.

  25. 25.

    As Rawls suggests in Justice as Fairness (Rawls 2001, pp. 47–48). Thanks to a reviewer for raising this issue.

  26. 26.

    For more on this see (Richardson 1997).

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Melenovsky, C.M. The Implicit Argument for the Basic Liberties. Res Publica 24, 433–454 (2018). https://doi.org/10.1007/s11158-017-9365-2

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Keywords

  • John Rawls
  • John Tomasi
  • Basic liberties
  • Liberalism
  • Rule of law
  • Freedom of the person