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Quantitative Freedom

  • Claus Dierksmeier
Open Access
Chapter

Abstract

This chapter investigates two paragons of quantitative approaches to the philosophy of freedom: Friedrich August von Hayek and John Rawls. While they are typically portrayed as occupying opposing spaces on a spectrum from conservative to progressive liberal thinking, they resemble each other much more than meets the eye. On closer inspection, one can see, though, how either thinker assiduously tries to avoid any and all metaphysical underpinnings of his theory and aims to make do with a merely quantitative conception of freedom. These endeavors, however, fail to accomplish their respective – and quite contrary – political goals. Both Hayek and Rawls can only realize their concrete liberal aspirations by tacitly taking recourse to qualitative arguments. The chapter concludes by suggesting that one better give up the pretense that a philosophy of liberty could stand on quantitative grounds alone. Rather, the covert qualitative dimensions of liberal philosophy should be rendered overt so as to facilitate a productive as well as critical engagement with its tenets.

Despite all of their particular differences, the metaphysics of freedom of Kant, Fichte, and Krause have a common guiding thread: They characterize freedom according to its inner essence before setting to work on the outer delimitation of individual freedoms. They differentiate between essential and inessential, meaningful and meaningless options, and first designate which freedoms are in question before indicating how many of these respective freedoms are to be granted respectively. That consensus about the priority of the qualitative nature of freedom and its merely subordinate quantitative contours is due to the fact that Kant, Fichte, and Krause philosophize about freedom essentially from the consciousness of freedom. This fundamentally qualitatively and normatively evaluative consciousness serves them as a decisive test for the cogency of their theories of freedom. Since the era of German Idealism, however, the willingness to employ metaphysical arguments for the philosophical investigation of the consciousness of freedom has noticeably decreased.

In the face of a world where, in the shadows and security of theological dogmas, freedom of thought and civil liberties were curtailed for centuries, the wish for more theoretical and practical license grew. To some a frontal assault upon the ancient walls of metaphysics seemed necessary. With David Hume (1711–1776), an alternative philosophical program gradually began to gain acceptance. From now on, truth was in no way seen to be gleaned from mere conceptual speculation or cognitive intuition, but should rather be gained either analytically by means of the logical examination of “relations of ideas” or synthetically by means of interpersonally accessible “matters of fact.”1 In the first case a priori knowledge is possible, in the second case only knowledge a posteriori; the former can be unconditional, while the latter only lays claim to conditional validity. With some modifications, the majority of positivist and analytic philosophers of the nineteenth and twentieth centuries retained this two-source theory. They refused to search for a third font of knowledge, i.e. for cognitions necessary for consciousness and independent of experience, which nonetheless structure the latter – like, for example, Kant’s a priori synthetic judgments or the dialectics of Fichte, Schelling, Krause, or Hegel.2

What does this methodological presupposition mean for the theory of freedom? Whoever accepts as true only that for which either logic or experience provides compelling grounds must establish the essence of freedom through either logical analysis or empirically locate it: Voilà, the theoretical program of large parts of the Anglo-American philosophy of freedom in the twentieth century.

Let us first turn to the empiricist attempt. Its positivist investment restricts freedom to phenomena that can be observed through the five senses; primarily to freedom of movement. The forefather of such attempts is Thomas Hobbes with his physicalist concept of freedom (which we already encountered in Sect.  1.3.2). The advantage hoped for by such an undertaking is a value-free, purely descriptive concept of freedom that first defines the permissible linguistic field upon which later questions of a normative nature can be cultivated – for example, who owes to whom, and how, the (re-)production of which freedoms.3

One nowadays no longer follows Hobbes, who includes in his definition of the boundaries of freedom also physical constraints and natural hindrances. Rather, most side with Jeremy Bentham (1748–1832) who only accepts boundaries other human beings could be held causally responsible for. The particular aim of this demarcation is to delimit clearly from one another “freedom as normative condition and freedom as physical fact”; the physical freedom resting upon “modal categories of possibility and impossibility” is to be separated from normative questions orientated towards “deontic categories of permissibility and impermissibility.”4

At first glance, that appears convincing: What one can and what one may often differs. But not always. The mere fact that we can clearly distinguish conceptually between ability and authorization does not mean that also in reality there could be “no necessary connection between instances of normative freedom and instances of non-normative freedom.”5 If, for instance, libertarians advocate that the same freedoms that are open to the rich are also open to the poor, they nevertheless base their claim upon precisely this assumption: The poor may (normatively) ultimately aspire to the same thing as the rich, but merely often can not (physically) attain it. Their (prescriptive) freedom nevertheless is said to remain untouched by this (descriptive) incapacity and to resemble the freedom of affluent people. Poverty thus does not seem to be a problem for the philosophy of freedom. This is countered with the well-known objection on the part of social-liberal thinkers that the “freedom to sleep under bridges,”6 for instance, nevertheless appears very different to the poor than it does to the rich. Since the rich can also sleep somewhere else, it is all the same to them whether they may sleep under bridges. Rendering the separation from facts and norms absolute could consequently lead to a suspect theory and a cynical practice. Yet, against this objection libertarians maintain: Even if one is poor, there would nevertheless be a marked difference between a society in which the poor, like the rich, could avail themselves of this very freedom and one in which the police cordon off all bridges.7

Who is right? Let us scrutinize this: Can one really describe what people ‘can’ do in purely physicalist terms before dealing normatively with what they ‘may’ and ‘must’ do? Is this truly the smallest common denominator, agreeable to all, from which any controversy in the philosophy of freedom can be untangled and solved? Can we measure, enumerate, and calculate freedoms? Is this the key that opens the door to comparing and distributing freedoms interpersonally?8 Doubts seem appropriate.

Even physical ability arises in the context of authorization. Someone, for example, suffering from a tetanus infection in the leg will experience a quantitative reduction of his abilities: His initial set of physical freedoms to walk and/or to limp is numerically reduced to the ‘freedom’ to limp.9 Yet that does not have to be the case. Most societies prevent such cases with tetanus injections – or treat them with penicillin. Access to tetanus and penicillin, functional for one’s physical freedom (to walk), is socially provided: through a legal authorization, i.e. by the consent to appropriate the requisite medicines (hitherto in the possession of others). Whoever does not receive such consent (by lacking means of payment for instance) must limp. Ability and authorization are, consequently, in this case in no way absolutely separable from one another. Their relationship – and thereby our real freedom – varies from society to society and, also within certain societies, from one point in time to the next.10 In a communist society, access to medicine should be for either everyone or no one. In a consistently libertarian-capitalist society, however, it may be available only through sufficient private financial means. Whoever would want to obtain the required medicine otherwise would be stopped by the long arm of the law: a physical coercion par excellence. The physical freedom (to be able to walk again) encounters its limit in physical coercion (of the police’s protection of possessions), yet only because those affected lack normatively legitimated options (legally to acquire medicine). Decreased authorization reduces physical ability; a lack of normative freedom reduces factual freedom.

What follows? The quantity of our descriptively describable freedoms ultimately depends upon the quality of the freedoms normatively ascribed to us, like, for example, the societally granted or refused freedom for basic medical care regardless of wealth. Therefore, the physicalist-quantitative concept of freedom is devoid of meaning without normatively-qualitative background assumptions (who possesses what and who owes what to whom). The oasis of semantic clarity luring us towards the positivist concept of freedom evaporates upon closer inspection into a Fata Morgana.

If freedom really only consisted in moving our body as we like, how could one then explain the emphasis and moral pathos with which political and philosophical discussions about freedom are conducted? Why do human beings desperately cling to certain freedoms, while nonchalantly renouncing others?11 That shows: If we completely separate the question concerning what actually makes a freedom valuable from the idea of freedom, then we subjectivize something that actually objectively belongs to the matter at stake. Wherever normative aspects belong to the freedom in question, a limitation to only descriptive judgments and a shift of the normative into the private leads us astray; it sacrifices truth to method.12

Whoever shuts themselves off from this insight – of freedom being normatively conditioned and socially constructed – must accommodate themselves to strange stances: In order to remain true to the program of mere description even something like coercion would have to be grasped purely materialistically: as physical necessitation. For lack of physical causality, mere omissions would not count. Coercion would require that an agent be physically prevented from acting. But that leads to bizarre consequences, because, on the view of those positivist-empirical stipulations, even a death threat does not coerce anyone to anything. In regard to the slogan: ‘Your money or your life!’ we could, after all, decide for the option of forsaking the latter. One may not voluntarily want to make such a decision, but many believe that such a decision nonetheless remains a free one.13 Nevertheless, whoever still blithely speaks of freedom even in regard to an acute death threat, may hardly present themselves as an analytic philosopher obligated to the customary use of language. Since, in everyday language, a pistol to the head stands, quite to the contrary, for a bitter loss of freedom.

What do we learn from this? A certain value (to allocate one’s money free from intimidation) enters into the description of the facticity of the freedom to be discussed. The meaning of the expression ‘Your money or your life!’ is not quantitatively measured by the recipient against a factual benchmark (‘How many options does that expression create or leave open?’). Rather this command is qualitatively interpreted in front of a normative horizon of interpretation (‘How does this change the existence I cherish?’). Instead of celebrating that, quantitatively viewed, an additional option – to be shot dead – is now on offer for selection, the affected party may well lament losing an alternative of qualitatively higher value – to remain uninjured in possession of one’s purse. One correctly understands this expression only as a necessitating threat to which one better comply by relinquishing the wallet: as coercion.14

The suggestion, therefore, that one could – first – decide upon the factual level whether a threatening situation implies a physically-causal coercion so that it could – then – be meticulously separated from all value-judgments (whether or not such coercion be legitimate),15 contradicts our experience, goes against our moral intuition, and is contradicted by the natural use of language. We also describe as unfree such people who, albeit not because of physical influence, but rather due to a credible threat, lose the chance to act autonomously.16 (The same is true – about which there is more to be said later – of the absence of physical causality in cases of failure to render assistance or of an unalleviated lack of the means of livelihood: here, too, freedom is curtailed.)

Coercion can thus be present in the absence of direct physical influence and whether this is the case has to be ascertained by value judgments. The positivist separation of fact and value does not succeed, therefore, neither with the idea of freedom itself, nor in the attempt to define freedom supposedly quite value-free – as the negation of coercion. The quantitative program to explain freedom through the formula ‘less (value-free) coercion = more (valuable) freedom’ fails. We require an evaluative concept of freedom as well as coercion. In the last decades, analytic philosophy has therefore gradually distanced itself from the attempt to define freedom by purely concentrating upon visible, physical components. In an appeal to everyday pre-reflexive understandings of freedom, and their linguistic reflections, ‘invisible’ dimensions are now ever more often taken into account, for instance moral aspects of the idea of freedom. This, too, indicates that the immanent normativity of the idea of freedom presents the true basis for the controversies about freedom.17

That today’s philosophy admits and examines the richer forms of meaning which our everyday language ascribes to the idea of freedom is surely a positive development. But is that enough? The analytic approach must, nonetheless, ultimately renounce every interpretation of the idea of freedom transcending the factual customs and boundaries of the linguistic community. This hampers the appropriate perception of counterfactual aspects, for instance when the idea of freedom confronts us as a normative demand to change our dominant ways of talking and acting. Consequently, one should ask more fundamental questions: Does it make sense to merely (extensionally) pin freedom upon its semantic or other expressions? Or should we not also (intensionally) investigate the idea of freedom according to its possible meaning beyond all previous manifestations? After all, were we to forget that the image of freedom, arising from an externally-objectivizing observation alone, severed from its inner sense and purpose, was at best a replica of its worldly manifestation and never its original image, then we could unintentionally end up taking a distorted picture of freedom for its accurate portrait. Freedom then would shrink to (nothing other than) the mass of existing options, and all normative questions suddenly would be settled by the basic and base expression “the more, the better.”

For this, too, David Hume provided the blueprint. Like Hobbes, he defined freedom as unhindered movement according to discretion. The space for the articulation of such movement itself has to be limited, since no individual freedom can be infinite, if space for the freedom of others is to remain. According to this model, there is an unavoidable competition between the individual’s desire for freedom and interpersonal requirements for coordination. This is the Achilles’ heel of many Anglo-American theories of freedom: their geometrical image, representing freedom via mutually exclusive shapes on bounded surfaces. This schema reduces freedom to a quasi-spatial conflict of distribution between incompatible circles of freedom. Accordingly, the relationship between law and freedom appears to Hume to be a tragic conflict: “In all governments, there is a perpetual intestine struggle, open or secret, between authority and liberty, and neither of them can ever absolutely prevail in the contest. A great sacrifice of liberty must necessarily be made in every government.”18 Peaceful order costs much freedom, and thus establishes the false choice between quantitatively enlarging either the individuals’ spheres of freedom and action or that of the state. Tertium non datur.

The opposed idea that individual and collective freedom could reciprocally aid and include one another, cherished and celebrated within the Continental-European tradition, cannot be expressed within this matrix. This is due to the classical perceptual angles of quantitative logic – geometry and arithmetic. It is geometrically true that two bodies cannot occupy the same space. Therefore, wherever freedom is represented through a parallelogram of physical forces, the societal gestalt of personal freedoms can only be interpreted as loss or limitation of their original impetus. The same result arises arithmetically. Society is conceived – in terms of game theory and social contract theory – as a thought-experiment in which individuals aim to maximize their own freedom and minimize the interventions of others. The crux of the purely quantitative approach to the subject of freedom is, as the following sections will illustrate in more detail, to perceive the societal balance and synchronization of conceptions of value merely as an antagonistic zero-sum-game. According to this logic, gains in freedom on the one side, must produce losses in freedom on the other.

According to the quantitative logic, individuals only accept the state, for example, insofar as they foresee that under the rule of law they are able to catch hold of more advantages for themselves than in anarchic settings. In order for this cost-benefit-calculation to work, in their hypothetical exchange of rights and duties, individuals must get out something of at least equal value to what they put in. And here – in this demand for symmetry – lies the snag: What about people who are clearly not in a position to help or hurt others, and thus appear as unattractive partners for such an exchange? How are they to be integrated into society?19 This problem arises, for instance, in regard to the needs, interests, and rights of disabled people.

Let us think of a teenager who, because of being physically disabled, cannot travel to school by his or her own means. According to theories of quantitative freedom, one would only have to guarantee that no one hindered him or her through physical coercion on the way to school. Then their freedom would not be damaged and there would be no duty on the part of the state to intervene to help them. Everyone else can go on maximizing their private options; they do not have a social, political, or legal responsibility to help the teenager. The case would be delegated to individual morality and left to charity stemming from private compassion – which of course also often fails to materialize, and makes the recipient dependent upon the benevolence of the provider. The case looks quite different from the perspective of qualitative freedom. It evaluates a freedom that cannot be exercised as a deficiency; as a consequence, society has to empower the teenager to make use of his or her freedom of education through appropriate measures. Therefore, even if no one has actively produced the teenager’s quantitative ‘minus’ in freedom, a society orientated by qualitative freedom would recognize the qualitative ‘malus’ of impairment and remedy it.

Proponents of quantitative theories have at times attempted to ward off such outcomes, by stating, for instance, that citizens could certainly have an interest in enabling the education of disabled people. One would only have to consider the required expenditure as an investment in their later economic productivity. The necessary expenditure would then prove financially worthwhile, as a contribution to a later increase of the gross-domestic-product (as the material proxy for aggregated individual options). Thus the symmetry of services and returns demanded by the proponents of the contractarian utility exchange could somehow be established. – But is this argument convincing? In the case of some disabled people, such a calculation might succeed; but it hardly works out for all, above all hardly for the most severely mentally handicapped persons.20 Moreover, in each and every case, the right of impaired individuals, recognized as unconditional from the perspective of qualitative freedom, would thus be devalued as merely conditionally conceded opportunities for freedom – i.e. under the condition of their prospective economic profitableness. Society’s support would then no longer be the expression of the inalienable (unveräußerlichen) dignity of humankind, but rather would become speculation about its alienable (veräußerbaren) economic value. In cases of a blatant asymmetry of service and return, it would be consistent if society’s assistance would not come forth; in all other cases it would be the result of base motives.

The difficulties at which quantitatively orientated theories of freedom arrive when confronted with the problem of such – and other – asymmetries (for instance in regard to global and intergenerational justice) are now examined more closely, by scrutinizing the work of Friedrich August von Hayek and John Rawls. Both thinkers were – and are – popular: Rawls, as a progenitor for social-liberal and progressive liberals, and Hayek as patron of conservative and economic-liberal groups. In political direction, they differ. They are nevertheless united in the undertaking to speak of freedom free of metaphysics. Both philosophize from the premise of a rationally pursued self-interest. Both advertise that the most liberal of all worlds would follow from their respectively favored institutions for the maximization of private options. They each thus pay homage to the quantitative paradigm of freedom – and their doctrines throw light upon its plausibility. In respect of strongly asymmetrical social relations, for instance, both Hayek and Rawls furtively amend their quantitative models in order to produce the desired socio-political and redistributive results. They thereby shift – unintentionally, but patently – freedom’s quantitative paradigm into a qualitative one.

3.1 Liberal Allocation (Friedrich August von Hayek)

Friedrich August von Hayek (1899–1992) was originally trained as an economist, but his interests ultimately included all of social philosophy. Accordingly, Hayek attempted to integrate his economic theory within a larger philosophical architecture presented as a comprehensive analysis of the modern consciousness of freedom. In The Constitution of Liberty he makes explicit this connection between questions of economic order and the philosophy of freedom. He aspired to produce ultimate and conclusive proof that freedom was the true basis and boundary of all state action.

Throughout his life, confronted by the violent excesses of systems of state regulation (from the right as well as from the left), Hayek sought principles which could both justify and effectively limit the exercise of coercion, and found these within the individual’s consciousness of freedom. In this endeavor, Hayek played the part, not only of the academic, but also of the polemicist. Many remember him less as an author of subtle theoretical treatises, but rather as a strongman sporting confrontative theses and combative postures. Thus one knows him, for instance, as the grandmaster of a noteworthy paradox: of liberal thought-police. Just as fiercely as he campaigned for freedom, he fought against all who differed in their understanding of freedom. Ideas that he loathed, such as those of positive freedom and social justice, Hayek brusquely declared as anathema for liberals.

Where, previously, there prevailed still fluid crossovers between ordo-liberal, social-liberal, and neo-liberal positions, Hayek introduces a radical either-or; either freedom or the social: “Liberty does not mean all good things or the absence of all evils. It is true that to be free may mean freedom to starve (…).”21 That was a clear pronouncement. Together with his mentor, Ludwig von Mises, and his follower, Milton Friedman, Hayek saw to it that from that time on the triumvirate of classical liberalism (in the shape of Hume, Smith, Kant, Humboldt, etc.), new liberalism (Green, Hobhouse, Hobson, etc.) and neo-liberalism (Eucken, Müller-Armack, Rüstow, etc.) no longer presented a harmonious trinity. Since Hayek’s adepts championed – with the furor of the orthodox – his doctrinal views as dogmatic insights, behind which no future liberals may hark back, liberal theology has been embroiled in disputes about heresy. However, his adherents nonchalantly overlook that many of Hayek’s political positions covertly contradict his proclaimed philosophical principles and can in truth only be legitimated by assumptions transcending his theoretical program. This very problem – the transition from quantitative to qualitative models of thought – is at the heart of what follows.

3.1.1 Genesis of the Neo-Liberal Concept of Freedom

In one fell swoop, Friedrich August von Hayek became both famous and infamous through the publication of his controversial pamphlet “The Road to Serfdom” in 1944. Therein he declared that Great Britain was on the way to transforming itself into a second Weimar Republic. The German state could only have been conquered by Hitler because it had already been undermined by social-democratic thinkers. They had anaesthetized the spirit of individual freedom and responsibility in the suffocating embrace of total nurture, having thus prepared citizens’ minds for National Socialist collectivism and the drowning of individual liberty in the intoxicating waters of totalitarianism. Insofar as England was now attempting social-democratic experiments of its own, it but repeated the error of underestimating the corrupting force of the Left’s ideals. Whoever flirts with social-democracy ends up in an involuntary marriage to socialism; hence, proclaimed Hayek, such experiments must be nipped in the bud!

Hayek felt that Europe had been truly liberal only before the First World War; in an era, it should be recalled, when power was chiefly held by monarchies. At that time, individuals could still call a sizeable sphere of freedom their own, while the collective hand only put in an appearance on the margins. But since then, everywhere a drastic increase in state-quotas has been observable, and people became increasingly spoonfed by the nanny state. Freedom’s case is everywhere failing, because democracy allows the masses to raze the liberal ramparts that protect the community from falling into the temptations of collectivism. – Even today, neoliberals and libertarians still relish citing this pamphlet. It supplies them with powerful quotations accusing their opponents – whether from the camps of the left, the right, or that of social liberalism – of deliberately or carelessly encouraging totalitarianism. For his image of being a libertarian populist, Hayek must therefore take some of the blame.

In his later years, however, Hayek attempted to tread more lightly and add more nuance. And these attempts deserve our attention. As Hayek further developed his theory over the decades he provided the public with a vivid lesson on both the strengths and weaknesses of a quantitatively directed liberalism. Hayek’s theory is a textbook example of what a formal theory of freedom geared to private options can provide – and where it fails, which is why at long last it dialectically turns towards qualitative categories.

In the theater of his mind, there are qualitative liberal motives, which, albeit in the background, forever vie for control over the play’s storyline with the more visible, purely quantitatively-oriented protagonists, and which drive the latter to some thoroughly surprising theatrical twists and turns, which make his dramatic texts an instructive characterpiece on liberty. Let us hence first look a little more closely at the dramatis personae populating Hayek’s philosophical stage. Hayek names those Old Whigs, responsible for plotting England’s Glorious Revolution of 1688, as the intellectual progenitors of his position.22 Aligning himself with this tradition, he propagates a British concept of liberalism as the paragon for his own philosophizing. That model, presented more as a conceptual archetype than a historical reconstruction,23 stands for an empirically-inductive position. In questions of societal organization, the contingencies of historical developments are stressed and procedures of cultural trial and error are glorified as the greatest political wisdom. Enter into Hayek’s drama of ideas, opposed to the heroic Whig, the villain of the piece: a French concept of liberalism tracking Jacobin doctrines of freedom. The gaudy garb of this quite sketchily scripted antagonist makes him out as a tragic fool beholden to rational deductionism and all-too-optimistic planning. Hayek then sharpens that conceptual comparison into a political opposition and comes down on the side of the British model. He opts for a politics orientated towards experience and experimenting, which ever so wisely forsakes the outlining of perfect societal systems through rational scenario techniques.24

Hayek epistemologically underlines this position with the cybernetic argument that one can completely comprehend only systems of lower orders of complexity and never systems of the same or much higher complexity.25 Individuals should not therefore dictate to others what their highest good is supposed to be because they are unable to know this with certainty. All political teleologies aiming at materially concrete ideas of the good necessarily fail, according to Hayek, because of freedom’s unique unpredictability and dynamic. Subordinating societal life to a general plan means to undercut the developmental potentials inherent within the self-determined cooperation of individuals who can always congregate into new, spontaneous orders. And it would be illiberal to boot.

With these arguments, Hayek casts about 2000 years worth of philosophical doctrines about the essence, value, and vocation of human life into the trash can of history. Instead of planned orders, Hayek promotes the market as the paradigm of societal relations. For one thing, the market helps pursue and counterbalance conflicting interests peacefully. For another thing, markets promote social productivity by employing and trading on the differences of personal interests. Decentralized market-activities use resources more efficiently than social-technocrats and societal-planners ever might.26 This superiority of unplanned market activity over planned economies causes Hayek to advise against rational constructions in the political arena as well. But – to raise an obvious objection – are not precisely our complex political institutions proof of the capacity of the politically planning intellect to mold and improve the world we live in?

Hayek sees this differently. One ought to understand the effects of political reason historically; as the product of social evolution. Historically developed social structures are often less the result of purposeful planning, but rather have gradually arisen; at times contingently or even contrary to expectations, yet finally they proved themselves reliable. Our political institutions function sometimes rather in spite of, instead of because of, the ideas people once had about their tasks and purposes. Nothing is more mistaken, therefore, than to absolutize a single, social or political model (via a supposed highest social goal, for instance, or through a fictional or real social contract) and thereby block the way towards further social evolution – as has, according to Hayek, the French constructivist type of liberalism.

Hayek’s statements about the German philosophy of freedom complete the picture.27 Against German Idealism he notes that one may not postulate an identity of freedom and the moral law so as not to curtail the freedom to act morally wrong.28 Such remarks, however, say clearly more about Hayek’s strategic motives than about the tradition devalued here: Each and every substantive definition of freedom de facto would lead to an erosion of freedom through ethical pressure to conform, which, Hayek believes, only a concept of strictly negative freedom could prevent.29

3.1.2 Validity of the Neo-Liberal Concept of Freedom

Anyone who defines freedom negatively has no other alternative but to opt – ceteris paribus – for those competing alternative actions and arrangements which promise more options. Quantitatively directed liberalism therefore often stands in tension with religion because every form of spirituality reduces liberality through the commitments it commends. Hayek thus claims that, for instance, a “Jesuit who lives up to the ideals of the founder of his order” has to be counted as unfree, since his spiritual dedication bars him from numerous options.30 Is that true?

Now, if a Jesuit renounced certain freedoms, he would have at his disposal, not necessarily fewer options, but rather, in the first instance, others: such as those arising only from intensive dedication and concentration upon spiritual goals, which perhaps are less frequent in a thoroughly secular life. Could the gains and losses in options possibly offset one another even quantitatively? Some managers who, following a burnout, flee into the next best monastery for a spiritual retreat may perhaps entertain such ideas at times. Yet even if that Jesuit has a lesser number of choices at his command, his freedom could thrive nonetheless, namely if the remaining quantity contains options that to him are especially desirable. But this insight is not gained arithmetically; it can only be captured by a qualitatively oriented way of thinking.

Precisely that difficulty – of distinguishing between options of higher and lower value – continuously troubles Hayek. Despite his own rhetoric that only a social order demanding the quantitative maximizing of the individual realm of choice may count as liberal, one finds in Hayek no plea for a total laissez-faire. Hayek does not support a position that knows no kind of commitments to the social environment or only accepts such restrictions as can result from utility-exchange models in minimal states, i.e. as strategies of reciprocal maximization.31 Rather he defends – in contrast to what many of both his supporters and opponents believe – a freedom that is not only limited by moral laws but also oriented at ethical values.

Concerning ethical values Hayek’s insistence that he would support only a “merely negative” concept of freedom is hence misleading.32 Hayek wishes to protect not freedom as libertinism, but freedom precisely as the source of ethical values, when he postulates it as society’s “overriding principle.”33 This principle should prevent us from employing means contrary to freedom in order to realize ethical values. A coercion towards the good – for instance towards engagement in civil-society – could rob that good of its ethical quality. Individual freedom must be spared morally motivated coercion, not because Hayek would renounce all ethical orientation, but rather because he wishes to liberate people to engage freely in genuine commitments. Ethical aims ennoble the freedom they arise from. Among other things, freedom should thus not be sacrificed to moral values since a virtue coerced is a virtue lost.

Hayek defends the legal limitation of freedom by disassociating himself from Jeremy Bentham (1748–1832)34 who (see Sect.  1.3.2) had supported the view that “every law is an evil for every law is an infraction on liberty.”35 In contrast, Hayek stands in solidarity with the idea of law as a form of freedom prominent in the Kantian tradition. Like Kant, Hayek demands boundaries for individual freedom of action which constitute the presuppositions of the freedom of all.36 While the proximity of his thinking to Kant’s, which the later Hayek likes to stress,37 certainly does not always exist,38 in this respect it is patent: He battles only against arbitrary coercion, but never one in conformity with laws of freedom. Arbitrary coercion reduces individuals to mere instruments, yet they desire and shall be ends in themselves, forming and directing themselves free of coercion.

Freedom from arbitrary coercion requires the state to have a monopoly on coercive practices which it then employs only in the service of freedom. State action should therefore be directed by the principle that coercion may befall no one “unless he has placed himself in a position where he knows he will be coerced.”39 So far as the exercise of coercion is depersonalized, subject to abstractly general and publicized laws, all individuals can adjust their behavior to avoid coercion. Legal norms are then hypothetically and instrumentally present for individuals, just like laws of nature. Just as one knows that lighting a fire in the living room can lead to burning down the house, one likewise knows that the deliberate burning down of a house can put one in prison.40 This spells the end of arbitrary coercion, as now only coercion deliberately or negligently provoked by individuals is administered. The rules of law indicate the juridical admissibility of certain means, yet entrust the determination of ends to free moral choice alone. The basic pattern of the state’s coercive rules are conditional codes (like the if/then regulations of penal law), according to which all can make an informed decision about whether they wish to put themselves in a situation invoking state coercion.41

Obviously, the state cannot establish such conditional rules capriciously. Citizens must never be degraded into mere means for the realization of political ends they do not share; not even from paternalistic concern for the sake of their assumed welfare, let alone for the benefit of contingent aims. Hayek only sanctions rules of coercion that help individuals pursue their own ends in a manner that excludes collisions with the freedom of others. Just like with Kant, with Hayek, the real coercion of the legal order is, therefore, legitimated and – in accordane with the former principle – limited by functioning as ideal support for those coerced by it, i.e. by protecting their freedom from themselves.

Yet precisely that tinge of transcendental philosophy within his ideas suggests that we should challenge Hayek’s claim that he merely follows a negatively formal, externally quantitative concept of freedom.42 Hayek certainly maintains that his concept of law pays homage to purely procedural criteria.43 However, many of the convictions supported by him cannot be justified with procedural criteria alone, but instead require for their support more far-reaching substantial premises, like, for instance, the Kantian idea of autonomy.44 Lawgivers could certainly formally act without reproach and, say, unanimously place on the satute book universal laws to which they themselves would be subject, which, however, Hayek would nonetheless materially reject.45 He would surely not brook, for example, a society which legislated to safeguard the orthodoxy of its members (including those in government) with the aid of floggings and stonings. Against all who aim to realize their freedom in such a way, Hayek draws a clear red line.

Hayek thus dodges the consequences of his own formalisms and brings instead an essentially qualitative concept of freedom into play.46 That typically occurs with recourse to the previous conceptions of the British legal tradition. Hayek expressly does not surrender the rule of law (for instance established legal principles like nulla poena sine lege47) to social evolution.48 He proclaims this to be common-law traditionalism. It is not, though, because this particular tradition of the rule of law itself is in no way up for discussion.49 The rule of law is the liberal rock in the social surf upon which all waves of illiberal plans for change should break. While all other institutions are seen as fluid, Hayek ascribes to the rule of law a rock-solid a priori validity – which however he does not really admit, neither to himself, nor to his readers.50

Holding fast to legal principles that must never be relinquished clearly collides with the program of social evolution otherwise so thoroughly supported by Hayek. Some interpreters have therefore advised Hayek also to relativize the rule of law instead of treating it as though it were, so to speak, a natural right.51 Others, on the other hand, come out against Hayek’s evolutionary subjectivism for undercutting the logic of argumentation he otherwise employs. This second interpretation seems more plausible: By highlighting the conditions that make universal freedom possible, Hayek put himself in a good position to clarify that not every adherence to basic rights and rules of interpersonal recognition is but a contingent postulate by construction-loving theorists.52

For example, Hayek writes: Not only physical violence hinders a self-determined life. Fraud and deception present interventions in personal freedom quite comparable to coercion. Through them the individual is robbed of the access to reality required for living an autonomous life.53 Deception and fraud thereby deny de facto the claims to freedom of the deceived and turn them into mere means subordinate to the ends of the deceiving. This sort of thing cannot be the upshot of universalization and mutual agreement. Accordingly, any law dedicated to the protection of freedom must protect liberty not only from violence, but also from fraud and deception. With similar arguments – transcendentally seeking the presuppositions of universal freedom – Hayek gradually reconstructs a canon of formal legal principles (like, for example, pacta sunt servanda) and material legal tenets (for the protection of property, for instance).

Hayek is thus not merely retelling the story of one particular legal tradition, which cultural evolution contingently treated with especial kindness. These reflections are rather presented as self-evident elements of the idea of freedom. Here deduction reigns supreme – not induction. Speculation orients the compass of historical experience – and not vice versa. Since Hayek loathes the tradition of legal positivism and accordingly demarcates his theory of evolutionary development of law sharply from it, he cannot but endorse the idea of justice as a meta-legal ideal.54 That is why the rule of law has such a key-function within his theory.55 Without this counterfactual orientation, Hayek’s descriptive use of social-evolutionism would quickly turn into the normative. That however would, in political theory, lead to a type of fatalism akin to the legal positivism Hayek rejects. Hayek’s version of the rule of law thus has roughly the status of a regulative ideal in Kant’s philosophy.56 For instead of renouncing his own ideal of justice in favor of social evolution, Hayek rather wishes to evaluate the latter against the former.57

Speaking metaphorically: For many sea miles, Hayek’s ship of ideas follows a fairway that traverses the ocean of liberty along the societal enabling conditions of freedom. Only as he, upon this journey, comes in sight of the continent of social justice, does he abruptly change course. Suddenly he makes for the high seas of distributive arbitrariness, where he commits his theory and its practical results, afar from all normative lighthouses, to the high waves of the market. Hayek keeps insisting that the concept of freedom he employs is merely negative,58 and this certainly seems true of that ultimate nautical maneuver; yet, in respect of the overall course of his journey, one must view this statement as the yarn of an old seadog. By means of qualitative coordinates, Hayek first carefully navigates the ship of freedom around the shallows of relativism and past the sandbanks of positivism. Only when these are passed by, does he loosen his grip on the rudder and entrust his vessel to the currents of social evolution and the eddies of economic deregulation.

3.1.3 Legal and Political Philosophy

Hayek expressly recognizes that, to every social evolution there also belong conscious and planned systematic reforms which in turn are based upon orientations that do not simply reflect the historical status quo, but rather wish to change it. He merely demands that only such steps towards justice should be taken that ensure the equal right of all and do not block a further evolution beyond the current state of knowledge. The commitment of all positive right to the directive of the rule of law that allows freedom to be curtailed for the sake of freedom alone leads therefore to one normative demand: to structure the state in such a way that it could only promote ends whose realization conform with freedom. That postulate, however, in no way resembles the “rigid position” of the libertarian who limits the state to only coercive administration.59 Rather, Hayek does accept that the state act as a “service agent” assisting in society’s “achievement of desirable aims,” i.e. the qualitative transformation of the collective sphere of liberty. This social-democratic and cultural aspect of his theory must not be obfuscated. Hayek does insist, however, that, from accepting something as a goal promoting the common good, it does not automatically follow that all means leading to this goal are permissible: Often one must content oneself only with second-best, yet, freedom-conforming solutions, in cases in which the situation could only otherwise be improved by coercion and dirigisme.60 While a “dogmatic democrat” would subordinate anything and everything to the judgment and goals of the majority,61 Hayek places politics from the outset within firm legal boundaries. Certain realms of reality are taboo.

To wit, the protection of minorities: The majority may only decide upon such principles “which the minorities also accept.”62 Yet how does one justify devaluing the votes of the majority, so that differences enter into a legal framework, which should, in principle, nevertheless serve all legal subjects in one and the same way? Hayek declares: Equality before the law should not mean measuring everything with the same yardstick, but rather treating that, which is unequal, unequally.63 Agreed. Yet, how does one find out in a particular case what is essentially equal and what essentially unequal? Hayek certainly wishes to elevate certain phenomenal differences to the rank of conceptual distinctions and thereby classify certain differences between people – but not others – as legally relevant or, respectively, irrelevant; and yet other differences he wishes to treat counterfactually. With a quantitative logic, viewing all options as basically of the same kind, this cannot be had. Must one therefore qualitatively ground the principle of freedom?

In The Constitution of Liberty Hayek is still looking for a pragmatic solution to the problem: “So long as, for instance, the distinction is favored by the majority both inside and outside the group, there is a strong presumption that it serves the ends of both. When, however, only those inside the group favor the distinction, it is clearly privilege; while if only those outside favor it, it is discrimination.”64 Even disregarding the fact that this answer contains no kind of theoretical criteria to prefer normatively just this discursive process over alternative procedures for the selection of politically operative values, there remains the practical difficulty of introducing a consensus about the “generality and equality” of a settlement on the part of all affected.65 What is to be done, if the most that is achievable are highly controversial majority judgments?

Not before the three volumes of Law, Legislation and Liberty (1973–1979), which appeared after the Constitution of Liberty, did Hayek present an answer to this question. Here he elaborates how to conceptualize an appropriate political self-regulation that adequately deals with differences of public opinion.66 Through their personal – not least financial – interests those in government may be influenced, which can noticeably impair the logic of their decision-making. The calamity of modern democracies, results not predominantly from the lack of intelligence and willingness of the politicians, but rather in the fact that they are systematically exposed to lobbying and corruption: “So long as the present form of democracy persists, decent government cannot exist, even if the politicians are angels … because … we … place them in a position in which they can obtain power … only if they commit themselves to secure special benefits for various groups.”67 The better certain societal interests are organized, the greater is the peril to the political representation of unorganized interests.68 Therefore the modern state should, for its own good, constrain its own ability to cater to groups whose interests do not align with the common good.

The remedy shall be provided by a two-chamber-system, which makes interference in politics unattractive to lobbyists. Accordingly, the functional difference between the legislative and the executive should be tightened: “the legislative one is to represent the opinion of the people about which sorts of government actions are just and which are not, and the other governmental assembly were to be guided by the will of the people on the particular measures to be taken within the frame of rules laid down by the first.”69 Bribery is thus impeded. One would have to corrupt both houses coordinately; and, consequently, it becomes far less probable that the legislative issue precisely those laws which suit the executive, but also that both houses unproductively inhibit one another like in the continual dispute between the American congress and the US president.

The further specification of the rule of law in concrete laws would then be incumbent upon a legislative assembly independent of popular influence since, according to Hayek, the application of the laws issued by it are in turn entrusted to an executive assembly orientated towards the will of the people. And a constitutional court should settle their respective quarrels.70 This model was criticized for being artificial and impractical.71 However, Hayek did not at all intend “to propose a constitutional scheme for present application.”72 What is more, he even advised established democracies against replacing their historically proven constitutions with that model – and only talked about it as a normative lodestar for future constitutional developments.

The technical details of this model per se are less interesting than what they reveal about Hayek’s understanding of democratic freedoms: Hayek looks for a new, institutional solution to the traditional idea that democracy should act within the boundaries of the will of the majority. Rather than taking the – for modern constitutions – routine step of curtailing the decisions of parliament through, for instance, certain inflexible rules about human rights, Hayek aspires to a more malleable system. He wishes to secure government in conformity with the rule of law in a manner that at the same time affords the legal system an openness to change.73 The dualism of the chambers shall lead to a political self-limitation assuring that everyone can freely agree to the resultant political decisions due to the complete transparency about how they come to pass.74

So, after Hayek had first dispatched every rational constructivism through the front door of his system, the idea of a universal acceptability now enters again through the backdoor.75 This result does not mesh well with a concept of freedom of ostensibly only negative and quantitative characteristics. For Hayek thus makes the presence of specific qualitative presuppositions – like the feasibility conditions of a free reconstruction of the respective political decisions on the part of rational subjects – into the criterion of the lawfulness of precisely those decisions. This is, after all, why he orientates politics towards decision-making procedures removed from populist and lobbyist pressure. Nevertheless, this only makes sense if one understands the rule of law, not as a mere formality, but rather as a normatively and qualitatively determined manifestation of the principle of autonomy. Otherwise, each and every traditionally tested procedure would suffice for the production of law.

These ways of guaranteeing the desired impartiality of the parliamentarian decision-makers (e.g., by stipulating that the members of the legislature can be neither voted-out nor re-elected) clearly limit the immediate execution of the political will of the population.76 Hayek thus aims to accomplish through a rearrangement of the internal organization of the state what elsewhere – also binding the will of the majority – constitutional texts aim to achieve through catalogues of basic rights and declarations of the state’s prime objectives, i.e. a liberal self-limitation of the democratic decision-making. Given this reorganization, he holds an enumeration of basic rights within the constitution as dispensable.77 This, however, might not convince everyone. It could just as well be argued that a catalogue of decisively formulated constitutional rights would be rather desirable, especially for the public, self-legitimation of the constitutional court and thereby for its assertiveness in respect of deciding formal disputes over authority between the two bodies as well as in respect of a material condemnation of certain laws. Be that as it may, the main point is that, time and again, when it comes to mapping out the political results of his philosophy of freedom, certain qualitative considerations in the background of his conception consistently prove to be more impactful than the procedures rhetorically placed into the foreground by Hayek. A system of quantitative freedom only leads to a liberal society insofar as its political processes are conceptualized with regard to qualitative ideals of freedom. In short, Hayek’s political theory disguises the very qualitative presuppositions which it needs to succeed.

3.1.4 Economic and Social Philosophy

Although quantitatively-liberal positions typically seek proximity to laissez faire thinking, Hayek quite expressly rejects the hands off-approach of the early nineteenth century as a misguided maxim.78 The aim of liberal economic politics is for Hayek – unlike the views of many of his followers – in no way “that government should never concern itself with any economic matter.”79 It is not defined by “absence of all government action,” but rather concerned with the fact that the “freedom of economic activity” should only be limited according to liberty-protecting laws.80 The economic order is to be pre-structured by the legal order in such a way that certain means of state action (like, e.g., arbitrary coercion) are principally deemed inadmissible. Thereby the state refuses to realize such ends (for instance a strictly equal distribution of assets) which are only reachable by such means.81

Hayek’s economic policy focuses upon structural measures. No economic order can flourish without “certain activities on the part of the state.”82 That applies both to the formal preconditions of market activity – monetary system, weights, units of measure etc. – and to the material preconditions of the same: for instance measures designed for risk-prevention (building regulations, workplace design), infrastructure, for the creation of public goods, and for national defense.83 In that respect, dimensions of the common good can clearly be found in Hayek.84 And in this instance, again, he does not appear concentrated on quantitatively minimizing all state-action in the economy, but rather on its qualitative optimizing through a concentration upon certain indispensable tasks.

Hayek’s economics wishes to empower citizens. Individuals’ knowledge and ability, decentrally allocated throughout society, presents the actual human and social capital of a national economy, which is used for better or for worse – depending upon the respective economic system. To Hayek, market prices appear as an especially fast and fluid medium of communication necessary for shared collaboration. In them, citizens communicate with one another in an impersonal, honest, and efficient way about the value of certain goods and services. Production follows the individuals’ willingness to pay presented in the fluctuation of prices. For the sake of their own economic advantage, by allocating resources where these promise the highest possible yields, citizens will engage in many socially useful activities. Thus the market indicates and coordinates supply and demand in a decentralized and reciprocal manner. Information about shortages and surpluses must therefore not take the circuitous route via a governmental center. Goods are therefore more efficiently distributed and, due to their thereby increased relative and individual utility, the aggregated absolute benefit to society increases.

While in the language of economic valuation prices constitute the vocabulary, the state has to provide the grammar for this language game. Through structural measures (rules, taxes) it must ensure that individual competition releases as few negative externalities (public evils) as possible and as many positive externalities (public goods) as possible.85 But the state may also, in certain situations, add its own voice, in order, for instance, to create public goods the market does not produce. For such operations Hayek recommends a multi-level assessment: Are the economic and political measures to be taken legally permissible? If they are, one must then examine “whether the benefits are worth the cost.”86 Wherever this, too, is affirmed, the examination passes from formal, quantitative gauges to qualitative criteria. For instance, the state may never place in the world such monopolies that could exclude the possibility that, in the future, the goods currently procured by state-ventures are produced by private hands.

A mix of quantitative and qualitative ideas of freedom is also found in Hayek’s discussion of tax legislation. The crux of every tax lies in the fact that, from the quantitatively liberal perspective, it presents a means of state coercion: If the individual would prefer not to pay it and views it as a minus for personal freedom, it is nevertheless forcibly collected. One must therefore clearly justify this coercive intervention into individuals’ means for freedom. Since the state is generally entitled to raise money through taxes for community tasks, Hayek believes, one merely needs a majority vote in order to legitimate the subsequent distribution of this money. As long as the elementary private rights of individuals are not infringed upon, the corresponding expenses would already be legitimated through the universal acceptance of the democratic system: a surprisingly social-democratic pivot within his thinking.

Interestingly, here a qualitatively liberal approach might lead to stronger protections for individuals. Since, in tax legislation as anywhere, only freedom can legitimate coercion, a qualitative perspective suggests the viewpoint that unavoidable taxes may only be applied to unavoidable tasks securing citizens’ capacity for freedom. Consequently, one would have to concentrate, for example, all direct taxes upon the essential tasks of the state (judicature, national defense, securing the subsistence and basic education of the citizens).87 Other tasks of the state would have to be financed by indirect taxes maintaining the citizen’s freedom, i.e. by means of of the possibility of alternative consumer choices. If one were to follow these ideas a few steps further, then one ought to demand moreover that payment and expenditure strictly match each other. One should therefore not collect moneys from an ecologically legitimated gas-tax, and then spend its revenue on “old-age provisions.” Hayek, however, completely overlooks this qualitatively-liberal constraint.88

All the more radical are Hayek’s postures in regard to questions of redistribution. For a progression of taxes according to income, he complains, no just criterion can be provided for lack of universal agreement about such differentiations. No tax must alter the relative wealth of economic actors,89 for ethical reasons as well as also for reasons of efficiency, i.e. first in favor of an equal right for all and second because otherwise one would create incentives towards unproductive economic activity.90 As individuals or occupational groups are automatically urged towards the most efficient use of resources by the market and its price-incentives, since in a competitive marketplace the most productive activities are remunerated with more money and therefore increased, every disproportional tax cannot but skew this matrix of payment and thereby produce misguided encouragements and discouragements.91 The advantage of the beneficiaries would thus be purchased by the disadvantage of all.92

Something similar had already been proposed by Hayek’s mentor Ludwig von Mises (1881–1973).93 In the 1930s, Mises had undertaken the reconstruction of economic doctrines, like that of marginal utility and marginal profit, in philosophical terms and as components of a universal praxeology.94 This was intended to provide an analysis of the behavior of rational actors detached from all human ends, and thus provide insights relevant for all practical sciences. That praxeology should do without value judgments, since, according to Mises, “the aims and ends lie beyond the rational sphere. They are deprived of verification and evaluation by reason and by thought.”95 Praxeology prepares such evaluations, however, by calling attention to problems of implementation and operational costs of certain projects. It thus sharpens the view of the effects intentionally or unintentionally implicated in pursuing a certain end.

With that, Mises laid intellectual foundations for the game theory later established by Oskar Morgenstern (1902–1977). It too shuns normativity. Decision-makers are not told (geraten) what to do but merely informed (beraten) what consequences their alternative options entail, which must impact their decision – if this is supposed to be perfectly rational. That meshes well methodologically with quantitative liberalism, which, allegedly featuring greater scientific rigor, renounces all qualitative objectives. Not incidentally, therefore, we find such a strong permeation of the hypotheses of game theory within quantitative liberalisms – for instance by way of agent-based modeling based on the homo oeconomicus.

Hayek did not go along with all the steps of this deliberately reductionist program; one occasionally finds value-judgments within his work, but never attempts at the mathematization of economics. Nevertheless, in central political questions he does apply the praxeological method. For instance, in regard to subsidies and price and wage guarantees by the state, Hayek shows that these entail determined and probably unwanted secondary effects. This, Hayek believes, is especially the case with the deviation from proportional tax rates in favor of progressive ones. For progressive taxes were only able to be politically supported by principles which “most people would not approve if they were stated abstractly. That a majority should be free to impose a discriminatory tax burden on a minority; that, in consequence, equal service should be remunerated differently; and that for a whole class, merely because its incomes are not in line with those of the rest, the normal incentives should be practically made ineffective – all these are principles which cannot be defended on grounds of justice.”96

Hayek wishes to limit all redistributive taxes to the quantitively smallest possible degree. First, he rejects the aim of an artificially balanced societal distribution of wealth. It would allocate the available resources contrary to the laws of productivity and thus damage all in the attempt to benefit some.97 Second, he shields himself against the, as he believes, illiberal means with which alone such an asset policy could be realized.98 Hayek dramatizes such measures as the beginning of a social-democratic descent, which ends in a socialistic valley of tears: Initially, an assessment-authority would disregard the individual judgments – i.e. payments – of citizens concerning what they value economically: a first assault on citizens’ choices.99 Then, a redistribution-authority would interfere with the citizens’ property rights according to socio-political discretion: a second infraction upon their freedom. Finally, because the market-system would eventually be so impaired that it could ever less meet people’s needs, a work-and-production-authority would have to mitigate the self-produced market failures. By decree that institution would then have to coerce people towards producing the requisite output. The initially merely incidental break with the principle of freedom thus develops into a system of all-consuming coercion: a dictatorial planned economy.100

How much truth is there in this horror scenario? Hayek’s argument that, whoever wants a liberal political order, should principally also stand up for a liberal economic order seems plausible.101 Therefore, under the aegis of freedom, individual legal positions, like, for example, private dispositions over property, are to be recognized as a rule. A liberal government will consequently prefer to exert influence on future asset distribution – by abstractly general laws, while renouncing, wherever possible, specific interventions into current assets. In contrast to what Hayek will have us believe, however, his view that each progressive taxation would inevitably lead to the ultimate demise of the occident, neither follows conceptually nor corresponds with historical experience. Rhetoric rules over realism here.102

Did not Hayek propose that essential inequalities may – or rather must – be treated unequally? Where extreme quantitative distinctions between rich and poor lead to a qualitative difference of living-conditions, an inequality calling for unequal treatment might thus be given. That is to say, a qualitatively liberal appropriation can accept a progressive tax and the limitation of individual possessive freedom it entails: as a quantitative expression of a reciprocal self-limitation of the state’s citizens through universal rules, which grants all citizens the chance for a life in freedom. In contrast, proponents of quantitative freedom obscure how this minus of pecuniary choice on the part of the taxed benefits the freedom of society at large. Quantitative schemas distort the qualitative issue at hand.

Hayek tenaciously maintains that what, in his view, must not be, cannot take place: a harmony of freedom and social justice. For Hayek, the idea of social justice is simply absurd. Justice is only suitable as a concept of individual behavior, and not as a measure of societal relations.103 With that position, however, he stands in opposition to natural language as well as his own theory. What about procedural and structural justice then? Hayek certainly recognizes those forms of justice beyond individual justice, which, for example, are inherent in the procedures and rules of the state of law. He is therefore guilty of double standards: Should what he deems perfectly legitimate in regard to the formal procedures of law, now be illegitimate in respect to material aspects of justice? How could that stance be justified?

Looking for intellectual support, Hayek likes to quote Immanuel Kant. With Kant’s critique of the material indeterminacy of the concept of “welfare” Hayek wants to beef up his own critique of the concept of social justice. Nevertheless, Hayek’s lesson about the impossibility of social justice was already completed before his encounter with the Kantian philosophy of law.104 Hayek did not heed Kant, but rather fitted the Kantian philosophy into his own doctrines.105 And thus Hayek undermines the socio-critical impulse of the Kantian position. For Hayek, the categorical imperative merely acts as a negative universalizability-test, which functions solely against the background of a traditional and undisputed legal culture, trying to ascertain whether certain plans of action harmoniously conform with this accepted context of law and property.106 Hayek thus turns the essential critical point of Kantian theory on its head, though.107 Kant had set out from a pre-positive share of everyone in the communal possession of the earth: Therefore all property includes societal obligation from the outset,108 an extremely unfavorable starting-point for the possessive individualism cherished by Hayek.

Kant certainly declares himself against arbitrary distributions, but for participative justice, while Hayek lacks the conceptual possibilities for said differentiation. Hayek’s kneejerk rejection of the concept of social justice therefore forces him to reclassify all assistance given to the indigent as means to protect social peace and societal harmony.109 With deliberately drastic formulations, Hayek creates an unresolved conflict between the rather balanced social policies of this theory and the one-sided rhetoric it is couched in. He thus writes, for instance, that social justice is as unthinkable as, for example, a “moral stone,” or also that supporting social justice is comparable to believing in “witches and ghosts.”110 On one hand, he firmly declares that according to his theory the state has no mandate at all to look after individual assets. On the other hand, however, he relativizes this stance in practice, by standing up for contributions securing the subsistence of those who lack property, for access to education for all, for help towards self-help, and even for a partial share of the innocently unemployed in the increase of overall prosperity.111 Theoretical inconsistence forces him into practical inconherence.112

A further example underscores this point. From the strict inactivity of the state his theory demands in regard to all things economic, he expressly exempts action against monopolies. If someone has a monopoly on goods vital for life (his example: through possession of an oasis in the desert113), then he must respect the legitimate needs of his customers or he could be coerced by the law to respect them. Thus, however, Hayek again contradicts his claim that the state should act only to protect negative freedom. Whoever watches idly as others die of thirst is guilty of all sorts of things, but not in violation of the concept of negative or quantitative freedom; he neither damages the physical sphere of freedom of the thirsty, nor does he actively reduce their available options. Hayek’s plea for state intervention can therefore only consistently be maintained through qualitative criteria – like, for example, a normative, counterfactual entitlement to nutrition.114

We now see the enormous price Hayek has paid for persisting in determining the idea of freedom only negatively and quantitatively. Since he characterized freedom as but a collection of non-coercive options, his right hand may not know what the left one does. While, with the right hand, he rejects any form of progressively liberal engagement, with the left hand, he secretly escorts it back into his palace of ideas again. That makes him appear hardly consistent from a neoliberal perspective and hardly trustworthy from a social-liberal perspective. For instance, Hayek’s criticism of class envy and of the lobbyist organization of particular egoism,115 in no way takes the side of the propertied. This stance is even maintained when it would entail a loss of privileges and assets. In this manner, Hayek rejects, for example, any social isolationism against impoverished immigrants in the interests of the propertied classes.116 For Hayek, the principle of freedom does not end when it begins to cost something. On the contrary, since, for him the freedom of individuals constitutes the legitimating principle of politics, Hayek holds that it is wrong to always grant primacy to national interests instead of the concerns of other peoples. Hence Hayek’s support for a liberal, global governance order, which – obligated to the rule of law – should serve the freedom of all the citizens of the world.

As a result, it can be said: Contrary to popular belief, Hayek does not always insist upon a minimal state, but rather provides some positive tasks which the state, serving society as a whole, should undertake. For the arrangement of these state-tasks, his theory provides important criteria and unique ideas about constitutional theory. Nevertheless, Hayek cannot gather up these results on the path proposed by him en route to a purely negative conception of freedom. His theory of the lawful state and the economic system concomitant to its legal order are infused with numerous positive postulates. In all, Hayek clearly gives his theory of freedom a direction which implicitly points beyond its explicit quantitative foundations – in the direction of qualitative freedom.

3.2 Liberal Distribution (John Rawls)

At the end of the twentieth century, hardly any philosopher was quoted as much as John Rawls (1921–2002). Now, at the beginning of the twenty-first century, hardly any other philosophical conception is criticized as much as his. In the 1970s, his work seemed to provide a welcome answer to the question concerning how the modern nation-state could harmonize the tension between the ideals of freedom and social justice. Today, in the era of globality, this answer appears less satisfactory. The burden of global and intertemporal problems revealed many fissures within Rawls’ conception, which, while manifest already in its architectural plans, had initially been overlooked.

John Rawls intended to establish a new home for liberalism that would perfectly situate it within the theoretical landscape of the present. For that purpose, he wished to build on the content of Kant’s theory of freedom, while leaving behind its method. Liberalism without the metaphysics of freedom: This attempt to appropriate Kant selectively motivates and connects the various levels of Rawls’ work and, within it, the gradual development of his own theory of freedom. Rawls, for instance, does not wish to derive the social order he favors from substantial directives, but rather wishes to let it arise by means of formal procedures alone – from theoretical thought-experiments and practical political representation. The liberal order should be justified by reflections undertaken and accepted on the part of citizens themselves; a project, which, in his time, was also advanced by other thinkers, like Charles Larmore, and which today continues to be pursued by otherwise harsh opponents of the Rawlsian approach, like Martha Nussbaum.

The crux is Rawls’ attempt to get exactly the kind of a fair social order he wants through a social contract resulting supposedly from nothing but a purely descriptive concept of interests, processed by the instrumental logic of rational exchanges, and governed by structural directives alone. However, the preference-theoretical concept of freedom as the quantity of all privately available options, which John Rawls overtly declares to be the foundation of his philosophical work, does not harmonize with his covert understanding of freedom. Rather, that quantitative theory of freedom endangers the very conception of freedom that is close to Rawls’s heart.

3.2.1 Approach and Method

Rawls never leaves any doubt about what kind of social order he favors and wishes to promote with his philosophy: a liberal order in which human rights are inviolable and where no citizen can prescribe to another which ideas of the good he or she should employ to direct his or her life. The human being should be able to live freely and only be limited in this freedom insofar as this is required for the protection of the freedom of others, or serves to enable the freedom of fellow human beings. The leitmotifs of the Rawlsian Theory of Justice117 are built upon this classically liberal basic chord. In order to fulfill customary expectations about contemporary compositions, Rawls nevertheless rearranges the harmonic sequence of his – in melody and rhythm – strongly Kantian liberal work. But since Rawls (incorrectly) assumes that Kant lets his harmonics of freedom resound from a metaphysically monophonic cadence of moral–legal-political ideas of freedom, he commits himself to another program. His aim is to unfold the desired liberal melody from the dissonant notes of musicians only obligated to their own self-interest. Therefore, Rawls mixes Kantian chords with contractualist sounds. Rawls, in short, suggests that Kant is attached to a metaphysical composition no longer suitable for post-metaphysical times.118

As a passage from his Theory of Justice makes clear,119 Rawls bases this interpretation of the Kantian opus (attractive melodies, unattractive basso continuo), which is quite common in the English-language literature, upon Henry Sidgwick’s The Kantian Conception of Free Will.120 This text provides a decisive key to Rawls’ Kant reception, as well as to his understanding of freedom as a whole. Sidgwick, discussing Kant’s theory, distinguishes three concepts of freedom: first, freedom as chaotically unregulated determination of the will; second, freedom as freedom of choice; and, third, freedom as conformity with the moral law. The first is then immediately ruled out again. For Sidgwick, a chaotic determination of the will can neither be thought along with Kant nor in and out of itself: Wherever mere chance rules, there is no responsibility. The question therefore arises concerning which of the two remaining concepts of freedom Kant favors. Both frequently surface in the Kantian oeuvre, and yet are, according to Sidgwick, incompatible with one another.

According to Sidgwick, the conformity theory entangles us in the spider’s webs of shadowy metaphysics. One thus remains without any information concerning how evil comes into the world since – on one hand – the purely free, i.e. the autonomous, enforcement of the moral-law is never evil, and – on the other hand – the purely natural will, lacking freedom, cannot actually be called evil. There, consequently, remains only the concept of freedom of choice. Yet, if one stakes everything upon that, one loses the rigorous potentials of the Kantian moral doctrine – which continually and unconditionally demands that the moral law be followed. Eventually, the somewhat awkward question arises: Why be moral at all? For, according to Sidgwick, without recourse to the conformity thesis, with Kantian means no kind of rational preference between the maxims of the saint and the scoundrel can be justified. Either could be universalized; and one could therefore consistently (i.e. universalizably) choose both as systems of preference directing action.

Having highlighted this difficulty, Sidgwick believes the Kantian position to be finished. But not Rawls: He certainly follows Sidgwick in turning away from the metaphysics of freedom. He also agrees with him that Kant’s theory could not possibly explain why a free subject should actually decide upon a moral course of life. But Rawls believes that it is possible to remedy this supposed “defect” of the Kantian theory.121 It is precisely a question of indicating good reasons for why one should freely choose ethical options. If one could show that to do so is based upon the well-understood self-interest of every agent, then a plausible motive for decent behavior would exist. One could then hold on to the results of the Kantian doctrine of freedom without the burden of metaphysical thinking. To this end, Rawls recommends his own conception of the original position (about which there is more below):

The original position may be viewed then, as a procedural interpretation of Kant’s conception of autonomy and the categorical imperative within the framework of an empirical theory. […] No longer are these notions purely transcendent and lacking explicable connections with human conduct, for the procedural conception of the original position allows us to make these ties.122

This position provides the source-code for Rawls’ Theory of Justice: the derivation of substantial positions from procedural postulates. In analogy with classical German philosophy, Rawls distinguishes between rationality in the narrow sense, as a prudent adaption of means to given ends, and reasonableness in the broader sense, as a wise consideration of the meaning and purpose of our intentions. Yet, unlike the philosophers of German Idealism, Rawls attempts to prove that the reasonableness (Vernünftigkeit) of ethical action is the expression of appropriate proceduralized rationality (Verständigkeit). He wishes to defend the content of a good number of Kant’s positions, yet replace the form of the arguments defending them with calculations from rational-choice theories.123 Nothing but recourse to formal, procedural criteria (like consistency, reciprocity, etc.) would be required for the necessary limitation of individual freedom (i.e. so as to discriminate between legally licit and illicit options). Rawls wishes, as it were, to protect political liberalism from metaphysics and morality.

Via the intermediate step of a hypothetical situation in which rational decision-makers – shielded by a ‘veil of ignorance’ from knowing specifics about their life – discuss the foundations of their social order, this idea of a purely formal representation of the citizens’ political will leads Rawls to a dual conception of freedom characterized by the following distinction: “liberty is represented by the complete system of the liberties of equal citizenship, while the worth of liberty to persons and groups depends upon their capacity to advance their ends within the framework the system defines.”124 This differentiation between liberty and the worth of liberty reflects the difference between liberal and utilitarian argumentation in favor of freedom. On the one hand, freedom (deontologically) presents a value in itself: “Freedom as equal liberty is the same for all.”125 On the other hand, Rawls (consequentialistically) recognizes that a liberal regime is more beneficial for some than for others. For instance, the rich typically profit from a liberal order more than the poor; in short, “the worth of liberty is not the same for everyone.”126

Since Rawls suspects all material criteria for evaluating freedom of metaphysics, there remains for individuals only a formal logic for the comparative evaluation of their options: In the absence of qualitative measures they must orientate themselves quantitatively. They will therefore (have to) decide upon rules that promise to them “more” rather than “less” utility. Consequently both – freedom in itself and its utility for us – should be maximized. Rawls expressly aspires to “the most extensive scheme of liberties” for all, as well as also a distribution-technique which is able “to maximize the worth of liberty” for those most poorly positioned.127 Extending the radius of freedom and maximizing the options contained therein – these quantitative leitmotifs are characteristic of the Rawlsian endeavor.

Such an approach, though, comprises difficulties. Two can already be addressed. First, there arises the problem that now both targeted values – freedom as well as its utility – are made measurable and commensurable; a quite problematic directive. How does one count or gauge freedom? Is there a yardstick with which even aspects of freedom not extant in the physical world could be accurately measured?128 Second, a difficulty arises in guaranteeing that the quantitative calculations and procedures recommended by Rawls eventually produce what is qualitatively acceptable to him – namely a liberalism directed also towards social fairness. Rawls attempts to guarantee this outcome through certain procedural rules. To rescue some positions especially dear to him (for instance, distributive justice), Rawls must however again free himself strenuously from precisely that quantitative straitjacket he had earlier put on.

Referring back to Kant assists us in outlining Rawls’ project more precisely. As we have seen (Sect.  2.1.1), Kant requires for his philosophy of law only a concept of freedom that makes possible the ascription of outer actions to subjective actors. Only for moral philosophy does Kant aspire to a concept of freedom which also thematizes the inner life (AA VI 223f). It should therefore be asked: From what exactly does Rawls actually detach himself when he distances himself from the Kantian metaphysics of freedom? Rawls follows Sidgwick in the assumption “that the noumenal self can choose any consistent set of principles,”129 as long as one does not attribute to this self some fixed “desires” like the “desire to express their nature as rational and equal members of the intelligible realm.”130 Now, Rawls believes he has to remedy that (erroneously) assumed lack of direction in Kant’s concept of personality: by an ad hoc introduction of certain natural needs for morality, due to, namely, a “desire to act justly” and a “desire to express most fully what we are or can be, namely free and equal beings.”131 A philosophical Münchhausen trick: To free himself from basic metaphysics, Rawls thus flees into baseless speculation.

Yet, Kant’s theory of the noumenal self is neither an indispensable nor characteristic feature of his liberalism.132 Kant’s theory of the subject is part of his critical philosophy, not his applied ethics.133 Kant’s liberalism must therefore be neither freed nor protected from metaphysics. Rawls would not have gone so far astray had he remained closer to Kant and followed his distinction between a phenomenally parsimonious (as well as non-metaphysical) concept of the legal person on the one hand and a comprehensive concept of moral personality on the other (see AA VI 214). As we have already seen (Sect.  2.1.1): Metaphysics in no way provides the foundation for Kant’s political philosophy, which refers purely to the sphere of outer-factual, legally enforceable actions between persons (AA VI 230). Whoever admits outer freedom of action does not at all need to further engage with Kant’s transcendental philosophy for questions of political, legal, and economic ethics.134 Kant’s political liberalism therefore – contra Rawls’ interpretation – in no way depends upon his metaphysics and moral theory.135 It rests upon an argument sui generis in favor of external freedom,136 which is why the construction of a system of rights could occur, as Kant writes, even in “a nation of devils,” i.e. a society of not at all morally or metaphysically motivated subjects (AA VIII 366). And hardly anyone would, after all, ascribe to devils a natural ‘desire’ to be well-behaved.

But Rawls proceeds differently: To prevent the inclination “to act as a free rider” from being lived out in the well-ordered society he aspires to, Rawls declares that it must be held in check by an “effective sense of justice,” which presents, as it were, the natural correlate of those natural “desires” under conditions of institutionalized justice.137 With this hefty anthropological thesis Rawls also undermines his own supposedly metaphysics-free approach. Rawls introduces those assumptions, after all, not via an empirically validated theory, but rather posits them ad hoc.

Rawls apparently wishes to pay off a debt that Kant never actually incurred; and Rawls does this by indebting himself to rational choice theory. He accepts the liability of thoroughly redeeming his arguments in the currency of enlightened self-interest. With that charge, however, his project becomes excessively burdened. For the repayment of a credit supposedly drawn down by Kant, Rawls turns to a philosophical policy of austerity: both, in terms of content, “by posing more limited questions” and, in terms of method, “by substituting prudential for moral judgment.”138 Rawls thus renounces the entire purchasing power of ethical currencies: Theories of the good life are rejected for being illegitimate means of payment. Normative bills should no longer be paid off with genuinely moral reasoning but rather be redeemed by “a judgment of rational prudence.”139 Even the solvency of the “principles of justice,” which Rawls so desires, no longer lie within their reasonableness, as they still did with Kant. Criteria for justice receive their “justification” now only through the contingent fact “that they would be chosen.”140 Philosophical values with formally unconditional validity are thus depreciated to a currency whose purchasing power results solely from its factual acceptance in circulation.

Rawls perceives this as a gain. The burden of norm-conforming behavior would consequently be drastically reduced since everyone could now recognize social “obligations” as “self-imposed,” which would provide a good “basis for the public acceptance of the corresponding principles of justice.”141 However this kind of unanimity is only possible on the assumption that the way people understand themselves is free from complication and controversy. One should, Rawls holds, start out from starkly reduced features of human existence; from individual self-interest and the capacity for logical thinking in particular. In the light of these premises, Rawls believes that, in a “hypothetical situation,” a social order would be able to be negotiated in which enlightened self-interest would drive everyone to the recognition of precisely such rules that enable fair cohabitation for all.142 In short, Kant’s categorical imperative that justice is unconditionally to be done is transformed into the conditional commandment of a hypothetical imperative that justice is to be aspired to since (and insofar as) it serves rationally pursued self-interest.143

It is difficult to see how this is an improvement upon Kant.144 According to Kant, the person’s ethical commitment does not arise as a result of insight into certain amoral grounds for morality or through the wish to respond to certain amoral needs for morality. Rather it plainly results from the reasonable insight and the concomitant emotional recognition (‘respect’) of the salience of moral commandments.145 Kant’s approach is therefore more consistent and far-reaching than that of Rawls since, from the beginning – and not only by way of secondary derivations – it always included cases where ethical action would be contrary to self-interest. The Kantian construction thus appears to me to be simpler and more parsimonious than the Rawlsian variant.146

3.2.2 Transcendental or Transactional Freedom?

An idiosyncrasy of Rawls’ philosophy of freedom is the enormous tension between the plea for a transactionally generated order of freedom on the one hand and, on the other, the extensive limits imposed on the very constructions rendered by the quantitative computations of self-interest:

Among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conception of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance. … Since all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain.147

Behind that oft-referenced ‘veil of ignorance’ subjects are robbed of all opportunities to generate tactical advantages for themselves, for instance by choosing rules which are in their own interest, while socially damaging. According to these limitations they can then actually increase their own utility only by nolens volens enhancing the utility of all. No one wants to cut their own finger; and if, behind the ‘veil of ignorance,’ one does not know into whose finger one is about to cut, one likely wields the blade gently.

As is well known, Rawls explains that a deviation from an initial “benchmark” of original equality of assets will be universally accepted in the “original position” when this indirectly also favors those who do not directly profit from the admission of differences in incomes. There thus arises Rawls’ (in)famous “principle of difference” in favor of the economically weakest: If after a hypothetical redistribution society as a whole has absolutely more, this should also satisfy those who unlike others possess relatively less than previously. Reformulated in terms of economic policy: Insofar as even the smallest piece of a capitalist cake turns out to be bigger than each piece of an all-in-all smaller socialist cake sliced into rather equal parts, a capitalist confectionary would nevertheless certainly be preferred to a socialist one, wouldn’t it? Therefore, one must move away from the idea of a completely deregulated libertarian pastry-product-market and, through a regulation of the baking-business, see to it that a sufficient part of the total production is supplied to the hungriest; that is more-or-less the basic idea.

The indirect character of this concept of solidarity immediately catches our eye. Why does this social redistribution not occur from a direct commitment in favor of the economically disadvantaged? Instead of reflecting upon the quantitative aggregate (for all taxed individuals), it might be more appropriate to inspect directly the qualitative results (for the needy).148 Why not – in order to remain in the picture – lay down lower boundaries of minimal-satisfaction, which every pastry-product has to reach which wants to be just? Surely, by means of the “principle of difference,” distributions of assets can incontestably be worked out which appear to societies to be both pragmatically and normatively acceptable; which is the main reason for the enduring popularity of the Rawlsian model. Nevertheless, in extreme cases situations may arise where its foundational concerns lead ad absurdum and reveal their theoretical weaknesses.

Imagine, for example, an extremely rich society in which everyone would be a millionaire, some however – with no limits put up against increasing inequality – have made the leap to billionaires. Even in a society of this kind there would still be continuous redistribution according to Rawls. The principle of difference certainly cannot issue a qualitatively motivated call like “It is enough!”; from every quantitatively enlarging delta it will rather derive an appeal for the relative improvement of the “least benefitted.” Conversely, in a society where large sections languish below subsistence-level, one would only be allowed to redistribute in strict quantitative proportion to the respective growth of the difference in societal assets overall, but not beyond this proportion. There could arise drastic emergencies – through famines produced by natural catastrophes for instance – in which the state would have to remain passive because it would not believe itself legitimated to redistribute more radically (accessing, for instance, the substance, and not just the growth of assets). For, without a qualitative criterion for basic needs, how could one even begin to justify (stronger) egalitarian redistributions within Rawls’ model?

Rawls’ attempt to procure universal qualitative justice from quantitatively-reciprocal utility exchanges not only fails in extreme situations, however. The actual problem lies deeper: in the idea that (only) the self-interest of individuals constitutes the basis of universal agreement with the social contract. Rational agents will grasp that their enlightened self-interest comprises entering into social relations only if and insofar as society is arranged as “a cooperative venture for mutual advantage.”149 The readiness of individuals for “social cooperation” is purchased at the price that this proves to be to the benefit of all.150 Where everyone has access to more resources and consequently also more numerous options in a rule-based society than in imagined isolation or in unregulated living conditions, the establishment of a state of law is but an upshot of the quantitative logic of self-interest.

This rationally pursued interest, however, stands and falls with the precise knowledge of the specific situation one respectively finds oneself in. People from privileged backgrounds benefit from different political rules than persons with a background of migration. For example: Without knowledge of one’s own abounding private assets, one will perhaps assume to profit from certain regulations (like, for instance, a strong progressive taxation of assets and income), which would also and especially better position the most poorly situated. Yet as soon as one already knows that one will inherit millions, this deliberation becomes meaningless – in the naked ratio of quantitative maximization. This shows that, behind a ‘veil of ignorance’ and without information about their personal position in life, individuals can therefore only very moderately serve their actual interests, which is precisely also Rawls’ declared intention.151 But why would human beings at all then venture upon the thought-experiment of the original position? Why should they make decisions under the constraints of a hypothetical situation in which the successful maximizing of their own benefit is de facto impossible? That appears highly implausible, since, according to Rawls’ model, the only characteristic all decision-makers possess is precisely the rational pursuit of their self-interest. And right here resides a considerable problem for the Rawlsian theory.

Whereas Rawls is concerned to show that the principles of justice he establishes (the principle of freedom and the principle of difference) present a rational choice for all participants within the original position, he can hardly explain how it should occur to someone from outside this perspective to impose its restraining knowledge-limitations upon themselves. A quantitatively orientated self-interest would in no way command that. Applied to economics: A homo oeconomicus who robbed himself of the presuppositions for being an efficient homo oeconomicus is not really an effective homo oeconomicus – or, more precisely, is not one at all. Only a consciousness always already qualitatively directed to duty may urge us to accept the Rawlsian intellectual restrictions in order to generate distributive results that serve the cause of justice rather than maximization. Whoever is not already ethically motivated will hardly involve themselves with that little game with the ‘veil of ignorance.’ Whoever is, however, might instead prefer to look directly in the face of justice as opposed to observing only its silhouette reflecting the image of self-interested rationality refracted by those complicated procedures.

These objections lead back to the Kantian formulation of the problem of explicating the normative form of the consciousness of freedom in and for itself (see Sect.  2.1). And it is thoroughly questionable whether for this purpose one must at all make use of the model of a social contract advantageous for all participatory parties.152 Rawls advocates this because he assumes that only through inadmissible metaphysics might one otherwise be able to identify the good and the just. Therefore, due to the peril of endless metaphysical dispute, the direct path to justice must not be taken. Society should head for that sublime goal only indirectly. And the social contract model provides the sought-after detour.

Yet can substantial justice be reached via forms of procedural fairness alone? Rawls believes “there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed.”153 Nothing more than rationally pursued self-interest need be presupposed. However, Rawls must then restrict this interest by many procedural tricks so as to achieve a quasi-identity between decision-makers and those affected by the decisions.154 Ultimately, no one deliberately harms themselves, therefore prudent decision-makers will – in the correct procedural framework – always act in everyone’s interest. Only thus does the model function.

At first glance, it seems that not all that much is demanded of the decision-makers; only a general capacity “to take part in and to act in accordance with the public understanding of the initial situation.”155 For instance, whoever can grasp the rules of a typical strategy game is already deemed appropriate for Rawls’ thought-experiment; towering intelligence appears unnecessary. It is enough if the capacity for thinking exists “within the normal range.”156 Consequently, Rawls wants his self-given guideline, “to assume as little as possible,”157 to be sufficient. Most people actually possess precisely this instrumental rationality which is here in question. “Only scattered individuals are without this capacity, or its realization to the minimum degree.”158

Does that, however, suffice? Rawls suggests that a society structured according to the framework of the principles he supports establishes more utility for all participants than an unjustly structured social order and is consequently to be desired out of purely rational self-interest. But perhaps that applies only for some, or in the best-case scenario for most, but never for all. Only when one hypostatizes the fiction of the “original position” into reality – thus assuming that people actually do not know who they are and what is most of all useful for them in their specific position – do the principle of difference and rational choice theory provide equal results.159 In real life, however, it is not always – and not for everyone – advantageous to join together with others within a society that redistributes private assets.

How is it, for example, with those “scattered individuals,” of which we were talking a moment ago, who lack even the lowest degree of strategic rationality? Severely mentally handicapped people, for instance, may not fit in with such a calculation, in at least two respects160: First, they cannot engage in the required cognitive processes of abstraction which Rawls outlined for working-out their long-term advantage. Second, other people among the prudent advantage-seekers may not at all wish to include people with such limited capacities within the social contract because they view their contribution to social net utility as too small. Highly explosive questions immediately surface: How then should the rights and interests of these persons be satisfied? Are they to be declared wards of the law and second-class citizens? That shows: Strongly asymmetrical living-conditions can implode a social model orientated around the idea of reciprocal symmetry.

Yet doubts concerning the model of the ‘veil of ignorance’ and the original position do not of course only arise from the perspective of a self-interest potentially thwarted by the Rawlsian procedural requirements. What should we think of a conception of freedom concretized by means of the fiction of people without qualities? If we follow Rawls to the point where we have a naked maximizer of preferences before our eyes, then we have already stripped the subject in question of two decisive dimensions. First, we find not a word here about reasonableness taking precedence over instrumental rationality. Yet where no ethical reason directs the technical ratio, decisions are made as automatically as in software-based expert systems. Is that already freedom? Second, behind the “veil,” these subjects lack every sensible, bodily, or spiritual dimension, which could give their decisions a genuinely individual or private aspect. These decision-makers are therefore, strictly speaking, not themselves at all, but rather merely masks of the universal. Is that still freedom?

These considerations are especially pertinent in regard to moral or religious life goals. As long as I, as a result of the ‘veil of ignorance,’ do not know whether I entertain religious sentiments, and if so which, it may be prudent to promote a form of society where I do not end up suffering the tyranny of fundamentalists. But, if one ponders the matter at hand from a firm, religious perspective, what then? Many religious people, from their own theological standpoint, certainly demand open societies with institutionalized religious pluralism. Yet intellectual honesty compels us to admit that the opposite will also be maintained. Some believers already feel that the hypothetical entrance into that situation of theological amnesia postulated by the ‘veil of ignorance’ is absurd or blasphemous, and so they reject the demands for secular political institutions and comprehensive civil tolerance resulting from it as heretical. Only those already motivated to overcome their own (here: religious) interests in favor of a concept of universally-acceptable (here: tolerant) living conditions – concretely: only those who already have a liberal understanding of religion as instructing tolerance (about which there is more in Sect.  5.1) – will gladly accept the preconditions for reflection Rawls establishes. Nevertheless, for its part, this qualitative motivation will hardly be derived from a quantitatively maximizing rationality.161

Rawls had sensed this problem. It appears highly questionable whether people wish to continually and necessarily serve his idea of procedural justice more than their own, not infrequently, countervailing ideas of the good or of God. This explains, in my opinion, why Rawls had recourse to that already mentioned “desire for justice” which was introduced ad hoc and assumed of everyone. Rawls assures us that “the desire to express our nature as a free and equal rational being can be fulfilled only by acting on the principles of right and justice as having first priority.” But how exactly does he know this if not from a metaphysical theory or moral intuition? Is this prioritizing of justice convincing – and what price do we have to pay for it?

For the argumentative support of that “desire for justice” Rawls enlists some theses far from every metaphysical restraint. Without hesitation he declares: “the self is prior to the ends which are affirmed by it.”162 That means: The philosophical consciousness of axioms of justice belongs to the inner kernel of the person. Religious ends, however, are a matter for the outer shell; a definitely controversial view. The priority of the self over its attributes and aims maintained here, certainly looks back towards a venerable tradition, and it may also appear prima facie plausible to many. But that is not the point. In Rawls’ anti-metaphysical theoretical framework, this position can be neither deduced nor defended.163 Therefore, whether Rawls’ take on the issue is correct is unimportant, since he cannot justify those emphatic declarations with his own methodological directives.

Rawls’ critics reliably located and admonished these metaphysical remainders in the Theory of Justice. Communitarians and theologians dislike Rawls’ preference of rights over the good; utilitarians and game-theorists point towards the indecisiveness of a calculation that does not use knowledge of one’s situation; pragmatists and relativists want to reject Rawls’ massive claim to normativity; and positivists as well as neoliberals are against the sociopolitical aims of his theory of justice: But they all agree that Rawls’ arguments in favor of freedom and justice are far less free from metaphysics and presuppositions than he professed. Furthermore, his critics concur that Rawls only apparently follows an abstractly-maximizing concept of materially neutral freedom, but in truth pays homage to a (very) concretely determined doctrine of freedom. Rawls could have responded to these criticisms in two ways: either by defending the qualitative presuppositions he had already enlisted or by retreating to the quantitative realm.164 Which alternative did he opt for?

3.2.3 Relativist Versus Dogmatic Liberalism

Rawls answers his critics in Political Liberalism165 and The Laws of Peoples,166 as well as in Justice and Fairness: A Restatement.167 He thereby makes use of both of the previously mentioned strategies – the tactical flight forward as well as the strategic retreat – which makes it difficult to interpret his late work properly. It is, however, generally agreed that in later years, Rawls distanced himself from the quantitatively maximizing directives of his original theory (“the most extensive scheme”; “to maximize the worth of liberty”; “mutual advantage”),168 but without completely relinquishing the contractualist model.169 He turns his back on the originally intended quantitative measuring of a single type of freedom and its always commensurable value and frankly admits “that the idea of the extent of basic liberty is useful only in the least important cases.”170 Instead of that he now also recommends a theory qualitatively orientated towards the sufficiency and optimization of freedom.

In Political Liberalism, the emphasis now lies rather on “society as a fair system of cooperation over time.”171 Occasionally, Rawls even seems to set aside the structure of symmetrical exchange-relations; for instance, when he declares that “the idea of reciprocity is not the idea of mutual advantage.”172 Instead of that, two “moral powers” of humanity henceforth become the normative directives of his liberalism: the capacities, on the one hand, to settle on principles of social justice and, on the other hand, to develop an idea of the good for one’s own life. With their help, in his later work, Rawls qualitatively weighs up the options of freedom as more or less “significant”:

a liberty is more or less significant depending on whether it is more or less essentially involved in, or is a more or less necessary institutional means to protect, the full and informed exercise of the moral powers in one (or both) of the two fundamental cases. The more significant liberties mark out the central range of application of a particular basic liberty; and in cases of conflict we look for a way to accommodate the more significant liberties within the central range of each.173

The example of freedom of speech explains the meaning and purpose of this distinction. In respect to the proclamation of political opinion, freedom of speech is unconditionally to be protected, Rawls believes, but perhaps not for the ends of private defamation. The justification of the difference lies in their respective contribution (present in the first case, lacking in the second) to the actualization of the two moral powers.174

All of that is of course transparently qualitative thinking, which – once more – enlists full-bodied anthropological pronouncements about the nature of human beings and their “moral powers.” Nevertheless, Rawls now also freely admits that he thereby sets out from materially loaded assumptions, like, for instance, from a normative concept of free and equal persons who are already orientated towards justice and the good; furthermore, from a two-level concept of reasonableness, which ethically transforms the purely technical end-means-rationality; as well as also from a concept of political community as an order aiming, from the outset, for fair cooperation.

Nevertheless, the status of conceptual construction in Rawls’ theory thereby changes. It is no longer a question of justifying the liberal society in general but of specifying its particular features:

We start with the fundamental idea of a well-ordered society as a fair system of cooperation between reasonable and rational citizens regarded as free and equal. We then lay out a procedure that exhibits reasonable conditions to impose on the parties, who as rational representatives are to select public principles of justice for the basic structure of such a society.175

Oddly, Rawls refuses materially to defend these substantial foundational presuppositions (for example, the assumption that “reasonable and rational citizens [be] regarded as free and equal”). He rather returns to the unorthodox argument that such a defense would run contrary to the liberal interests of his theory.176 He has thus been derided for being ready to defend the basic liberal order with arms, but not with words.177

Rawls justified renouncing argumentation by claiming that, under conditions of pluralistic publicity, disagreements about ultimate truths, even on the part of well-meaning as well as intellectually competent judges, cannot be avoided. If one does not wish to dictate some kind of position, then one must just accept the fact of plural worldviews. No political ideology relying upon but a single one of the extant worldviews, philosophies, or other ‘comprehensive doctrines’ can enjoy universal acceptance. For pragmatic reasons, therefore, only an ‘overlapping consensus’ of as many of such doctrines as possible should be aspired to.178

According to Rawls, this consensus shall not be comprised of all extant views, but only of those that are already characterized by reasonableness. For Rawls, this reasonableness means not to impose one’s own principles of moral reasoning (religion, morality, tradition, etc.) onto one’s discussion partners. One must address one’s interlocutors solely with such arguments that they, too, can share – merely as fellow-citizens. Instead of subsuming others into one’s own moral or metaphysical paradigm, one is to address them as fellow citizens of the state. Only justifications corresponding to this condition of reciprocity should be considered by public reason, i.e. concretely: in the legislative and judicative institutions of the state.179

But how do all citizens agree upon premises as tolerant as, for instance, that every fellow citizen is to be recognized as free and equal, and therefore as a fellow decision-maker? Rawls’ answer is surprising: One must, in short, have the fortune already to live in a liberally constituted society. If this is the case then everything required for that step (a generally accepted concept of the basic rights of free, equal personality, as well as the idea of society as a fair cooperative order emerging from reciprocal agreement) is already anchored in the political culture and constitutional reality.

Surely: Wherever one can hark back to an already culturally embedded ‘overlapping consensus’ of tolerant convictions, such as in open societies, one can normally rely on that broad support for liberal principles that is required to get the implicitly already affirmed values of Rawls’ ideas of consensus explicitly realized in politics also. Therefore, the task of political philosophy would no longer consist in deriving a liberal canon of values, but rather in applying it, for example by further differentiating already shared basic values through the thought-experiment of the ‘veil of ignorance’ and by applying them to concrete problems. Instead of a philosophizing about the foundations of liberal orders and constitutions, the program of Rawls’ revised liberalism is rather a philosophizing based on their foundation.

The contextual relativity of that program is as peculiar (auffällig) as it is perilous (anfällig). Does it realize or ruin Rawls’ normative demands? It is certainly no accident that Richard Rorty attempted to appropriate Rawls’ new doctrine for himself, i.e. for his own, expressly relativist liberalism.180 He joyfully recognizes within Rawls an unexpected partisan of his view that indeed liberalism offers no universal truth, but rather merely reformulates the agreeable customs of the West. Yet Rorty thereby clearly overlooks Rawls’ own claim to offer more than merely a copy of the political comme-il-faut of occidental democracies.181 Rawls rather seeks a theory, which, while independent of philosophical, religious, or moral presuppositions, still does not operate merely descriptively.

Rawls looks for this intermediary position on the path of a renewed engagement with Kant’s philosophy, which he characterizes as a “comprehensive liberalism.” In contrast, he himself wishes to make do with a narrower “political liberalism.” He makes the same pronouncement about John Stuart Mill, who in Rawls’ later works feature far less than in his earlier ones. Rawls means that Kant, and similarly also Mill, provide a theory that employs not purely political, but also rather moral and/or metaphysical reasons in favor of defending political freedom.182 That, however, would resemble arguments based upon religious faith; and these are useless for a political theory obligated to the pluralism of the moderns. Moral and metaphysical arguments, according to Rawls, are appealing to those who share their premises; yet – wherever inquisitions and forced philosophical conversions are considered unfashionable – this never includes everyone.183 It is certainly good and honorable to commit oneself as a moral individual to the tenets of Kantian ethics, but this sort of thing may not be elevated to the principle of political action. In the same way, Rawls again denies that a metaphysical belief may be made into the criterion of state action.

In this argumentation, Rawls from now on also includes the “belief” in freedom in the Kantian sense. Hence Rawls now formulates – against his earlier conceptions – that one may not make the Kantian concept of a person, transcendentally hovering above its interests and aims, the foundation of the political/legal understanding of persons.184 We can concede this point, as long as we are clear that, with these arguments, Rawls does not put Kant out of commission, but only his own, deficient Kant-interpretation, which depends upon the erroneous assumption that Kant transferred his metaphysical and moral concept of freedom to the political arena. Kant, however, had supported neither the one nor the other (see Sect.  2.1.2).185 Kant did not at all demand that one make the obligation to obey the law also the inner, i.e. moral ground of the determination of one’s will.186 For Kant, the outer legal coercion functions as an analytic moment of the principle of law, precisely because legal norms must be able to be enforced independently of morality or other convictions. Therefore, Kant’s doctrine of right, keeps moral theory – and, even more, metaphysics – strictly separated from the realm of rights. Only within the doctrine of virtue does Kant declare the fulfillment of legal commitments also to be an inner concern of an ethical life; but this is clearly an issue within the ambit of morals and without any claims to political validity.

There is, to be sure, nothing objectionable about Rawls’ plan to found rights independently of morality and metaphysics. It would just have been better to carry out this plan, not against Kant, but rather with him. From giving lectures about Kant’s practical philosophy for many years, Rawls actually should have most precisely recognized the systematic foundations in Kant’s system that demand precisely such a separation of the moral and the legal realm.187 But, with his identification of Kant’s legal freedom with the principle of moral autonomy, Rawls nevertheless follows an interpretation that overlooks that differentiation. At any rate, de facto Kant’s Doctrine of Right can be understood, just as Rawls claims about his own theory,188 as a module whose reduced concept of freedom can be incorporated in the most varied wider theories (of a “comprehensive liberalism”).189

This point is expressly stressed here, since the definition of the legal/political medium in question concerns something both delicate and central for liberalism as a whole: the justification of legitimate coercive force.190 How can a legitimation of coercion on the part of the state be implemented without damaging the demanding liberal aims of the Rawlsian approach? Because Rawls relegated each and every fundamental theoretical determination for concrete political decisions to the discussion of the procedural framework-conditions of his theory, the question concerning the potential validity of his approach leads to the following consideration: What must occur when those prior clarifications about a valid procedure for arriving at political decisions are just not shared by all participants? How, for instance, are we to deal with individuals or whole societies, for whom the political common good in no way consists in seeking a fair cooperation between the free and the equal in conscious contrast to their own ideas of the good and well-being respectively? Or, how are those individuals (like feminists, for example), who do not strictly separate the private and the public, to be dealt with? Or those (like, for example, certain religious groups) who reject drawing a clear line between the holy and profane, the religious and the political arena? With people, therefore, who do not wish to roll back and limit their ultimate and deepest convictions for the sake of penultimate pragmatic deliberations?191 After all, in the eyes of many people the mere demand for such lines of separation is already a liberal dogma – and an implausible one to boot. They feel imposed upon not only by what results from the limitation of discourse decreed by Rawls, but rather already by the structural and materially restrictive preconditions that thus enter into the political discourse.192

How then can Rawls’ liberal proceduralism defend itself against illiberal convictions? How can he counter, for instance, the argument that human beings are in no way equal, but rather that a deity has purposefully created differences between men and women, between one’s kin and those of another caste, between those of one and another skin color, between those of one and another faith, which must also be correspondingly taken into account in the procedures developing the political will – for example through a differentiated suffrage? How does Rawls defend his approach against the belief that it is sacrilege to consciously bracket one’s commitment to individual and collective salvation, or that one’s faith-based knowledge justifies the practices of the inquisition in the name of the soul’s salvation? How can Rawls answer someone who, in all seriousness, declares that the meaning and purpose of the political order is the most radical realization of theocratic ideals – including the repression of those of other faiths? And what is to be said when entire states devote themselves to such views and therefore completely or partially reject the provision of human rights?193

Rawls’ answer to these questions is surprising to put it mildly. He refrains from a substantial rejoinder to such conceptions and rejects mobilizing his own philosophical convictions to battle fanaticism.194 Yet he in no way pretends to be a relativist willing to tolerate fundamentalism either. As long as he knows that a sufficient “overlapping consensus” is backing him within his own society, Rawls intends to take no notice of such views. Rather, he excludes them from the outset from the ranks of theorems worthy of political consideration: Whoever does not comply with the presuppositions of argumentative reciprocity and secular tolerance, simply disqualifies himself as “unreasonable” and is therefore not allowed to participate in the legitimacy-generating deliberations of public reason.

Rawls operates with a strikingly narrow understanding of “reasonable” though; even “perfectly rational” arguing subjects are, for him, only “reasonable” insofar as they are not led by their particular ideas of the good. They must rather document a “desire to engage in fair cooperation as such”195 and aspire “for its own sake” to a world “in which they, as free and equal, can cooperate with others on terms all can accept.”196 Now, this indeed very specific concept of reasonableness surely reflects accurately the central content of Rawlsian liberalism: Namely, to position the consensus produced by reciprocal argumentation above every other objective and value in politics. Yet this is in no way merely a formal position, but also a material one. Under the watch of procedural value-neutrality, a highest value is smuggled in: consensus. There appears to be no value resulting from these considerations that would deserve giving up the quest for consensus and conflict-free cooperation.197 In comparison with that, however, every other value is consequently reduced and thus robbed of its potential unconditionality, although nothing at all about values is explicitly discussed!198

This background adds poignancy to the question how to deal with persons who do not accept such a secular depotentialization – and consequent political restriction – of their values, because they, for instance, believe “that certain questions are so fundamental that to insure their being rightly settled justifies civil strife?”199 Confronted with this question Rawls takes off all his masks and speaks bluntly. If, from belief in other highest values, like, e.g. “the salvation of a whole people,” there arises a resistance against the conditions of liberal discourse, Rawls declares without hesitation that, “At this point we have no alternative but to deny this, or to imply its denial.”200 Evidently, in order to politically devalue their values, for him it is enough to prove to such believers that their doctrine is incompatible with the fact of plural worldviews. It would surely be preferable to strengthen tendencies or groupings within the respective religious communities that already pursue the pluralistic openness of society. Yet if these kinds of tolerant tendencies, which Rawls detects predominantly within Christianity and – in a few isolated cases – also within Islam, are too weak to find broad acceptance, there remains only the exclusion of religious speech from political discourse.

In this way, however, Rawls’ talk of the state’s value-neutrality degenerates into lip service. Reducing the radius of the space of public reason so drastically, Rawls robs political dispute of essential depth. The suggestion that the propositional contents of respective (often religious) background-theorems are, even without including their ultimate grounds, translatable into the political medium without losses, does not convince precisely those whose ultimate convictions demand a dedication without compromise in opposition to the principles of consensus and tolerance.201 Against this backdrop, it becomes clear that Rawls’ project of not at all including certain justifications within the process of political decision-making has in no way neutral, but rather partisan, consequences: His model procedurally invalidates all of those convictions which aspire to a good superior to every conceivable consensus. His supposed tolerance towards the religious consciousness thus reveals itself as its poorly concealed rejection; which Rawls also tersely vouches: “Of course, we do not believe the doctrine believers here assert, and this is shown in what we do.”202

These considerations draw attention to a systematic weakness of Rawlsian liberalism. First, Rawls claims to refrain from all qualitative (moral and metaphysical) valuations and, with downright positivism, let all rationally pursued preferences be quantitatively equal. Yet he then recoils from the ultimate consequence of this move. Whenever the going gets tough, because the actually expressed preferences are pushing towards undesirable forms of society, Rawls applies the emergency brake; the quantitative freedom (of all) to political free speech and participation is thus cut back to the qualitative concept (of some) of what reasonable political arguments are supposed to be.

Nevertheless, without agreeing with Rawls’ conclusions, one can still support the panegyric of a ‘political liberalism’ and the search for an ‘overlapping consensus’ shared by all social groupings.203 Treating political problems as penultimate questions whose solutions are not to be deduced from the ultimate grounds of human existence, but rather to be worked on by the respective political community in a debate considering the reflections of all citizens, does appear compelling. Indeed, metaphysics is not the raison d’état.204 Yet this consideration in no way automatically compels us to conclude that one may never question the premises of freedom and equality, or thematize their validity from, respectively, their own world-views. Sending metaphysics into political exile appears to me to be neither feasible nor desirable (about which there is more in Sects.  5.2 and  5.3).

Rawls is knitting a common pattern of quantitatively liberal needlework: the presumption of a value-neutral concept of freedom laced with the thread of mere quantity. Yet because those principles, which liberals actually favor, cannot be secured, qualitative criteria are subsequently woven into the quantitative yarn in order to attach the postulates of, for example, cosmopolitan tolerance and restrained citizenship. Truly laborious needlework!

Compare that to Kant’s weaving-technique: Just as sharply as Rawls, he rejected all attempts at curtailing the freedom of others for religious or moral reasons. Yet, to do so, he did not have to distinguish between politically permissible and political impermissible opinions. His concept of law prohibits from the outset projects violating the individual’s right to freedom from entering into the political decision-making. Kant, however, deduces that result directly from a qualitatively outlined idea of lawful freedom. It does not indirectly have to be derived via the supposed protection of self-interest. This strict determination has liberating, not limiting, consequences for the liberal cause. Kant appears to be thus a more orthodox and, at the same time, a more tolerant liberal than Rawls. He is more orthodox because he materially defends the doctrine of freedom, for which he also makes use of his basic philosophical convictions, for instance, of the priority of freedom over the political goods to be established by it. Yet Kant also shows himself to be more tolerant since he does not wish to exclude the victory of unpleasant opinions through delegitimizing political procedures, but rather places confidence in public reason’s ability to cope with illiberal demands in and by means of democratic processes.205 While Kant, of course, can also not prevent a people from revolting against the religious appropriation of the political sphere and/or their individual rights to freedom, at least, in contrast to Rawls, his philosophy allows him to reject that as normatively inappropriate.206

Rawls, on the other hand, is impeded from the possibility of opposing ethically or religiously motivated relativizations of political freedoms by anything other than an authoritative dictum, since he, under postmodern conditions, rejects as inadmissible every substantial argumentation for freedom as a political principle. Yet, by prescribing, without further substantiation, the West’s liberal political procedures, he performatively contradicts his own basic liberal concerns. He presupposes what should be justified; namely, that in entering procedures of legal/political decision-making something occurs over and above the enforcement of a liberal creed against other systems of conviction. Enforcing freedom in this way dogmatizes liberalism. At the same time, it relativizes it, since one would consequently also have to make friends with illiberal political procedures as soon as social indicators change; a conclusion which Rawls, personally, certainly would not have wanted to draw.

3.2.4 Whose Freedom?

In my opinion, the vacillation between a dogmatic and relativist understanding of freedom in Rawls’ work is no mere gaffe. Rather, it is characteristic of the unclear relation between qualitative and quantitative criteria in his conception. This feature not only shows itself – as the last section has argued – when one asks about which options, opportunities, or capacities should be maximized in the name of freedom. It also emerges when one looks more closely into whose freedoms a Rawlsian society concerns itself with. Rawls’ answer to this qualitative question likewise remains unsatisfactory.

The problem of appropriately thematizing the rights of the disabled or of future generations already shows up within A Theory of Justice. The reason: Within the framework of the “original position,” the decisive moves are ascribed to rational maximizers of self-interest. Obligations to others must be reconstructed as exchange of quantities of private utility or freedom. Under such presuppositions, all parties will aim at symmetrical reciprocity, and only provide their due share in cases where they can obtain something of a quantitatively equal value. The emergence of fair results from exchange is only conceivable insofar as the trading partners act as contemporaneous and equally strong subjects “who can play the role of fully cooperative members.”207 But when the benefitting other is an as of yet unborn subject or someone severely handicapped, of which one expects nothing or only little in return, then – in a calculation of sheer quantitative advantage – granting services makes no sense.208 As a result, in the framework of his theory, Rawls could professedly not grant animals the status of subjects with rights.209 People with disabilities are an analogous case. Perhaps this is why Rawls forever postponed dealing with the rights of people with disabilities.210

The rights of future generations, however, had already been addressed within Rawls’ Theory of Justice.211 In order to obtain the desired results (a sustainability-oriented environmental and financial policy), Rawls first introduced additional anthropological assumptions, like, for instance, the assumption of the contract partners’ emotional concern for their own offspring. He thus invites us to think of a sequence of interlinked generations. Then, from step to step, a more or less symmetrical utility-exchange could take place as long as one ascribes to the rational decision-makers an interest in the wellbeing of their descendants.212 In so doing, however, Rawls still owes us a proof of why a policy should not be content to still benefit the first, second, and, eventually, third subsequent generation (i.e. those who may be born within one’s own lifetime), but not at all consider the interests of the seventh and eighth generations (which are not included in that construct).

Moreover, in the eyes of his critics, Rawls is once again guilty of ad hoc metaphysics: For concern for one’s offspring is certainly not analytically contained in the concept of a rational advantage-seeker. But equally unsatisfactory are his attempts to protect the legal interests of future generations, without those ad hoc assumptions. Rawls, for instance, declares that each generation must sense that it lies within its interest to commit itself to axioms of action which it wishes would have been considered by earlier generations.213 If we nevertheless concentrate upon a purely quantitative exchange of freedom and utility, then current decision-makers will certainly joyfully welcome that previous generations carefully and sparingly dealt with their environment. But why should it enhance their utility to likewise decide in favor of a consideration (necessarily remaining unrequited) for those born posthumously? Rawls thus proclaims something which de facto is not true: Rational egoism and the interests of future generations very often do not coincide – which is exactly why the rights of posthumous generations are so often trampled underfoot.214

What is needed is therefore more decency and morality than self-interest and advantage-seeking. Whoever sees himself, from unconditional respect for subsequent persons, as obliged to treat the planet earth sustainably, follows no utility-exchange calculation conditioned by quantitatively symmetrical exchange, but rather acknowledges a commitment to another notion of freedom. Only from the perspective of a qualitative conception that does not ascribe the same quantitative value to each employment of freedom – destroying freedom the same as protecting freedom, for instance – can responsibility also for the seventh or eighth subsequent generation plausibly be justified.

Rawls’ laborious constructions of intergenerational justice thus unintentionally reveal the inconveniences of a theory shielding its qualitative premises: In A Theory of Justice he had – in favor of intuitively recognized qualitative and asymmetrically directed duties – still engaged in correcting the clockwork of quantitatively symmetrical exchange with contingent additional assumptions. After demoting the – in A Theory of Justice still serviceable – speculations about the freedom and equality of all persons from the status of prescriptive metaphysical universals to that of merely descriptive generalizations about liberal societies, such an escape from the logic of symmetrical reciprocity is no longer possible. With quantitative means alone, Rawls cannot justify why in certain fields of the political administration of law a purely quantitative ratio of the exchange calculi should no longer or not solely dominate.

Rawls is lacking qualitative guidelines that secure affected subjects their due irrespective of symmetrical relations. Since he refuses to transcend hypothetically-reciprocal layers of interest in the direction of categorically-unconditional demands for recognition, he must – strictly speaking – refuse to grant rights whenever and wherever symmetrical relations cannot be construed, or at the very least accept that their actual rejection conforms with his theory. Rawls accordingly acknowledged that the rights of future generations and people with disabilities, or even animals, could only be integrated with difficulty into his theoretical framework: “While we would like eventually to answer all these questions, I very much doubt whether that is possible within the scope of justice as fairness as a political conception.”215

This diagnosis may surprise us; it seems to oppose the large amount of liberal pathos one finds throughout Rawls’ late work: for instance, an emphatic concept of persons, who, grasping themselves and one another to be free and equal, examine and, if the occasion arises, transform the rules of the rationality guiding their interest in the light of ethical reason. Indeed: When, at the altar of Rawls’ theory, aspects of personality are negotiated and transformed, thick swathes of humanistic incense pervade the cold cathedral of his thinking. Yet we should not be deceived into thinking that this is anything more than a pleasantly fragranced smoke screen. What does not take place is a genuine transubstantiation of symmetry-orientated utility-calculations into appropriate normative correctives in favor of inviolable human rights.

Rawls in no way counterfactually substantiates his concepts of personality – that would all too closely resemble the Kantian metaphysics he desperately avoids – but rather only historically, as it is distilled by him from the factually applied principles of practical reason at the heart of the liberal state. Rawls only declares that, insofar as those principles (recognizing other persons as free and equal individuals as such) are historically discoverable, the reason articulating itself within them will encounter subjects for whom those principles mean something. In that case then there are persons furnished with the capacity to distinguish between the (less important) good and the (more important) just.216 The two-level ethical orientation his theory requires to enable a critique of the private ideas of the good in the light of universal forms of justice, thus already exists in practice. This argument is as circular as it is unproductive. It establishes the validity (Geltung) of these principles only within communities where they already possess historical authority (Gültigkeit). A concept of personality acquired in this way can, however, exert no normative force beyond liberal societies. The result is: In attempting to unburden his liberalism theoretically, Rawls robs it of precisely the argumentative foundations that a philosophy of freedom requires in order to defend its normative demands.217

This point becomes striking in regard to the marginalization of certain people and groups from the protected sphere of the social contract in Rawls’ theory of international law. From the logic of his earlier theory one may have speculated that in international settings he would seek to extend the normative measures of his Theory of Justice to the global level, defending postulates of international social justice and a global catalogue of personal rights to freedom. But instead, in the Laws of Peoples, Rawls proclaims a different policy. He recommends a federation of states – largely inactive in questions of distributive justice – in which even nations not especially strict on human rights may participate.218

Rawls’ position is: As long as in their external relations illiberal states keep to axioms offered by a second order original position of international law, their partial non-compliance with demands developed on the part of the first order original position in inner relations should be accepted.219 Insofar as these states grant to everyone at least “a special class of urgent rights,” like, for example, “freedom from slavery and serfdom,”220 they are acceptable allies within a global federation. One should, after all, not force basic convictions of a “Western individualism”221 onto other nations. Therefore one would regrettably have to recognize from nation to nation also some inequalities in the attribution and protection of human rights.222 Though forcefully demanded on the part of the first order original position, from the second order original position certain liberal rights to protection (especially, it seems, of women) may now apparently be infringed upon, which should be accepted within international law out of respect for the internal sovereignty of those states.

We see: The ultimate source of all normativity is and remains for Rawls the national community, which Rawls conceives as “a closed system isolated from other societies.”223 To it alone, i.e. to the nation state, individuals have to adhere to claim their human rights. To prevent an ugly theoretical lacuna here, nations must be conceived as though they one and all provided the presuppositions to satisfy their citizens’ claims to human rights. Yet, with a glance at the reality, one must certainly question whether all nation states have at their disposal the necessary (economic) and sufficient (political) means to distribute fairly to all people what they are respectively due.

That attracted the attention of renowned critics. If a certain polis does not give a whit about the effects of its policies on foreigners or on the subtleties of human rights, then, as Amartya Sen, for instance, complains, the Rawlsian theory knows “no systematic way of opening up the reflections in the original position to the eyes of mankind.”224 Martha Nussbaum also criticizes the assumption that states always fairly represent their populations – in terms of domestic and international policy – as “idealism carried to a point at which it loses useful contact with reality.”225 There are, after all, governments for whom violations of human rights are not the exception, but rather the rule, since they are part of their political program. Nussbaum poses the eminently important question: Who stands up for the repressed? Who protects citizens from (unlawful) states?226 These are concerns to be discussed in more detail in the following chapter (Sect.  4.2.4) in connection with Sen’s criticism that Rawls provided no “procedural barricade against susceptibility to local prejudices” and thus was himself guilty of just such a narrow-minded and petty “parochialism.”227

Rawls thus not only disappointed hopes for the construction of a convincing cosmopolitan liberalism.228 With the international limitation of his basic liberal concerns, he also damaged political liberalism on the national level. Ultimately Rawls throws into doubt even the prescriptive character of the original position of the first order, and thus his tools of justification par excellence. If, as A Theory of Justice suggests, the original position is really an illustration of human reason’s normative capacity, then its rules must be valid universally – and therefore be binding for every state in the world. But if one accepts that only some states meet the criteria established in the first order original position, what then? Insofar as (with the late Rawls) one recognizes as valid for other states also the procedures of political representation that, for example, through hierarchical representation lead to the exclusion of marginalized strata and women, one thus retroactively devalues the status of the original position in liberal societies as well. It consequently becomes downgraded from a transcendental condition of legitimation for all dominion into merely a description of some political conceptions.229 Just as in Rorty then, the liberalism in the West is diminished into merely the liberalism of the West.230

The practice of global solidarity thus falls victim to theoretical predilections. Instead of – as was suggested by Kant231 and carried into execution by Krause (see Sect.  2.3.4) – positioning humanity as a whole as the terminus a quo and ad quem of global justice, Rawls remains attached to a methodological nationalism. Beyond national states, he does not at all attempt to give the idea of distributive justice a place within political practice. In the face of blatant global poverty, Rawls has not much more to offer impoverished nations than to shift the essential responsibility for their unfortunate position upon themselves:

I believe that the causes of the wealth of people and the forms it takes lie in their political culture and in the religious, philosophical, and moral traditions that support the basic structure of their political and social institutions, as well as in the industriousness and cooperative talents of its members, all supported by their political virtues.232

The paralyzing consequence is clear: If it lies in the hands of every one nation to protect its citizens from poverty, then it is also the responsibility of nobody else.233

An astonishing result both in regard to the past (colonialism, imperialism) and the present or future (for example in respect of structural injustices in world-trade).234 For, do we really live in a world in which nation states can haggle amongst themselves as ‘rough equals’ for economic advantage and political design so that the interests and rights of their citizens are adequately protected? Or, is that quasi-symmetry not completely fictional in the face of a world that can be unbalanced militarily by individual states, economically by a few nations and firms, and financially by numerous hedge funds and investment bankers?235 The global governance system, largely formed by the affluent nations of the world, and the past and present economic disadvantages for poorer countries resulting from it, have rather created a world which for the foreseeable future will be characterized by asymmetries rather than symmetries.

Therefore, we must agree with the trenchant analysis of Martha Nussbaum, that: “To assume a rough equality between parties is to assume something so grossly false of the world as to make the resulting theory unable to address the world’s most urgent problems.”236 In contrast, Martha Nussbaum states that “We live in a world in which it is simply not true that cooperating with others on fair terms will be advantageous to all.”237 Affluent institutions and states have one-sided duties for the creation of a more just global (legal and economic) order according to Nussbaum. She of course knows: The powerful and affluent of this world “pretend their system is fixed and final, and resist with might and main any demand that they change internally, whether in matters of human rights or in environmental matters or in matters of economic policy, either in response to the situation of the rest of the world or in response to international treatises and agreements.”238 This kind of thing is to be taken seriously politically, but not philosophically. It merely involves an “arrogant mentality that is culpably unresponsive to grave problems.” Therefore, with a swipe at Rawls, Nussbaum tells us that the only consistent consequence is that: “One should not grant it philosophical respectability.”239

This critique emphasizes a general weakness of theories of sociality based on the logic of quantitative maximization. Some states on this earth are so indigent that self-interest does not drive richer nations to enter into equitable commercial exchange with them. Here fails the logic – insisted on by game theories and contractualism – of a cooperation for the sake of reciprocal advantage. Whoever recognizes this also considers neither cosmopolitan anarchy nor a global system of victor’s justice to be acceptable and must therefore transform those quantitative calculations by qualitative criteria for a fellowship of all world citizens.240 For cosmopolitan rights and duties will certainly often lead to living-conditions which immediately also benefit the world citizens respecting them, although not always. Quantitative exchange-calculations can thus underscore global and intertemporal demands for justice but not justify or establish them. They require an independent foundation upon the basis of qualitative freedom: In order to defend a consistent liberalism, one has to materially and not only formally, qualitatively and not only quantitatively, support the principle of freedom. One would have to show, for instance, that and why liberalism’s respect extends to the human person as such – and not only the members of certain groups, classes, ethnicities, or trading communities. Only in this way can the normative force of the ideal of freedom equally relate to all human beings and establish a universal ethos of responsibility.

3.3 Results and Implications

Rawls and Hayek are thinkers typically located at opposite extremes of the liberal spectrum. This manner of evaluation is orientated, rather superficially, by the political tendencies of their doctrines and thereby overlooks the structural similarity of both approaches. Both attempt to support a philosophical liberalism without talking about the content of freedom: Rawls, because he fears metaphysics, and Hayek, because he resists theories of positive freedom. Their premises and aims are different, but their methodological approaches are not. Rawls operates from the assumption of a fictional negotiation, Hayek backs real processes of historical development. Both, however, mistrust their sources. Rawls keeps his hypothetical decision-makers in check by redirecting their maximizing logic through procedural directives, wherever their choices do not suit him. Hayek, in contrast, rejects actual decisions as illegitimate, whenever they run contrary to his substantial concerns. Although Rawls’ social liberalism and Hayek’s Whig liberalism clearly differ politically, they resemble one another in their methodological inconsistency. Both consequently ended up in a cross-fire between false friends and genuine opponents: While the former prompt them to provide more methodological consistency in undesired directions, the latter call for them to revoke their methods in the name of their basic convictions. Thus critics and fans agree in rejecting the obvious contradictions within the respective approaches.

The studies of Rawls and Hayek thus highlight: In order not to lack all content, quantitative thinking must borrow from qualitative presuppositions. Problems emerge wherever this borrowing is not admitted openly. Either this undermines the consistency and the consequences of the theoretical approach. Then a truly qualitative program is sold as a quantitative one, an essentially positive concept of freedom as a negative one, a material understanding of freedom as a formal one, a substantial issue as a merely procedural one. The result then is a theory standing in frequently unacknowledged contradiction with its premises. Or quantity – despite all inner intuitions and outer observations – is raised to a qualitative category und thus the quantifiable is made the sole theme of the philosophy of freedom. Then the result is a theory permanently in marked contradiction to reality. Both alternatives damage the concerns and reputation of the idea of freedom.

We must therefore move away from the stupefying poverty of option counting, in order to be receptive to the stupendous diversity of freedoms. To ward off such a move, tenacious followers of quantitative approaches declare that their model would indeed be able to reproduce all necessary qualitative differentiations within its quantitative matrix. One would merely have to value options in respect of their quantitative fecundity.241 If one simply counted the resulting options (second order), which a certain option (first order) opens up or forecloses, one would have at hand the multiplying factor with which every option of the first order can be assessed against competing (only seemingly qualitative) alternatives (of the first order). One could thus confidently adhere to the quantitative matrix and at the same time take into account qualitative differences in the value of certain options.

Yet, along with Charles Taylor, we can reject this argument as “either vacuous or false.”242 The statement that (qualitatively) more valuable freedom is continually to be also (quantitatively) estimated more highly, is vacuous and counterproductive; that does not strengthen quantitative approaches, but rather expresses the essence of qualitative theories of freedom: the conceptual priority of the qualitative. False, however, would be the assumption that more quantitative options necessarily imply a qualitatively higher-grade freedom. For example, the customary penal laws for theft and fraud constrict the room for manoeuver of countless people in many spheres of life. Laws against radical political freedom of expression and “fringe political activity”243 instead affect far fewer people in more narrowly circumscribed fields of action. Nevertheless, we judge the latter, and not the former, to be especially dangerous for freedom. Here, the quality, and not the quantity, of those options clearly tips the scales.

Martha Nussbaum therefore urges us finally to recognize unambiguously “that some freedoms are central for political purposes, and some are distinctly not […]. Some lie at the heart of a view of political justice, and others do not. Among the ones that do not lie at the core, some are simply less important, but others may be positively bad.”244 As an example of the latter variant she invokes “the freedom to harass women in the workplace”245; as an example of the former “the freedom of motorcyclists to drive without helmets.”246 In short, some freedoms mean more than others: This elementary as well as essential insight forces the rethinking of the fundamentals of precisely these quantitative theories of freedom blurring this distinction.

The materialist and positivist foundations of quantitative theories of freedom must be especially scrutinized. For a concept of freedom only aiming at the number of easily realizable preferences all too easily enables one to overlook that freedom quite essentially consists in the – idealistically and normatively motivated – reflection upon, criticism, and change of our preferences. A few (second order) preferences can critically evaluate and, in the long term, transform innumerable (first order) preferences. One thinks, for example, of elementary ethical maxims that keep in check a multiplicity of hedonistic predilections. Would our freedom be helped for instance if, because of the predominance of the latter, the former would suddenly be nullified? Do people, whose capacity for moral reflection is sabotaged, perhaps experience in the satisfaction of their then unreflected wants a maximum degree of freedom?

To clarify this objection, one must not at all fall back on the shrill thought-experiments cherished by today’s philosophers (hallucination machines, happiness drugs, parallel existences, etc.). We only need think of a society which increasingly renounces public media and culture and thus increasingly leaves the cultivation of intelligence and taste to the private sector. This could give us citizens conditioned by commercial manipulation, who fritter-away their lives by politely conforming to consumer madness, and who vote for policies devoted to the permanent extension of consumer options. Now, according to the quantitative understanding of freedom these people would, however, have to be freer than citizens of other liberal societies, who, although autonomously informed and cultivated (plus 1) would have fewer consumer options (minus n + 1) to choose from.247 Does anyone seriously wish to maintain this?

We must, therefore, avoid turning the freedom of choice into a fetish. And certainly not only because of the everyday experience that occasionally a little less quantitative freedom is quite agreeable since, for instance, before overflowing supermarket shelves, there creeps up upon us a longing for a “freedom from decision.”248 The critique would also not be primarily psychological and directed by the idea that a superfluity of possible choices pressurizing people to be ever more individualistic and authentic can make some poor souls depressed.249 No, we should quite fundamentally investigate whether it is prudent to reduce freedom to freedom of choice and to conceive it as an enumerable commodity.250

So as not to be misunderstood here: That quantitative theories reify freedom into a commodity is no innuendo but rather the credo of their proponents. Apologists for quantitative approaches present this argument as an ultimate defense of their position: Freedom, which from a qualitative perspective appears to be an end in itself, is in truth only a means to an end (see the Introduction in this chapter). While our freedom of choice is no concrete means (for predefined ends), it is an abstract instrument. And this abstraction constitutes its charm. Like money, freedom thus also presents a means to all ends, of which one can never have enough, regardless of what one intends to do with it. Therefore, freedom is wrongly held to be intrinsically more valuable than the goods it brings. Actually, its value is just as extrinsic as the value of the former; only – this is the point – quantitatively unequally greater, since through said abstractness this commodity also encompasses future – currently still indeterminate – uses.251

Whoever thinks of freedom as like – or directly as – money fetishizes it, however, since, in the glorification of its quantitative exchange-value, its qualitative use-value is neglected. Furthermore, in order to satisfy the postulated commensurability, the commodity-value of freedom is to be budgeted by a reduction to purely material options. Yet, in order to be able to measure and make freedom comparable in this way, we must, we are being told, conceive of the entire world, including ourselves and our freedom, mechanically: “we need to think of space and time as granular in order to produce measurements of ‘the extensiveness of available action.’”252 Then alone could all qualitative value judgments be completely reduced to quantitatively exactly ascertainable spatiotemporal relations.

What twisted logic: One first commits oneself to viewing freedom purely quantitatively. As a consequence, its commensurability – and thus also its measurability – has to be postulated. The latter, however, demands a physicalist view of the world as well as of ourselves. That worldview, for its part, now allows only quantitative analyses and no qualitative appraisals. Finally, all qualitative aspects of freedom are thus passed off as inessential, and it is maintained that, without any losses, these can be reduced to quantitative differences. A circulus vitiosus.

The same is true of the concept of coercion which the quantitative tradition would also like to grasp in purely physical terms. Earlier (see the Introduction in this chapter), I already expressed doubt as to whether a normatively rich concept of freedom could be picked out from a purely physical definition of coercion. Usually the experience of coercion is “emphatically and technically contextual”; in real life, descriptive and prescriptive aspects are typically intertwined.253 Everyday experiences, normative behavioral-expectations, and situational preconceptions – and not only physical aspects – define what are freedom-infracting, coercing acts.

Whoever, for example, breaks into a house and takes possession of someone else’s things negates the owner’s freedom of possession. Violent, physical causality is present. But that those things were first of all bounded from the appropriation of others by fences and walls, likewise presents a physical causality which limits their freedom of movement and freedom of appropriation.254 Whoever criticizes the former causality (criminally directed against private property) must legitimate the latter causality (effecting protection for private property). Without such legitimation there prevails a stalemate between the physical freedoms, i.e. between the coercions of the homeowner and those of the intruder: That which the one experiences as a minus in freedom, i.e. coercion, the other registers as a plus. Whoever does not want to content themselves with this almost Proudhonian stalemate (“property is theft”255) has the burden of proof and must justify the legitimacy of the privation of objects due to their privatization. But that is clearly not achievable physicalistically, but only ethically: through a theory of qualitative freedom.

The theory of quantitative freedom pretends to be value-neutral, but it is not. There is, rather, a hidden valuation in its physicalist limitation to the empirically enumerable: against, namely, all quantitatively inestimable but nonetheless relevant aspects of freedom.256 With what right is it established that only causal effects count as limitations of freedom, but not also omissions of services, which could be imperative for the protection or materialization of the freedom of others?257 Can we at all define that which is injurious to freedom before we have come to an agreement about what our duties in regard to one another are?258 In short, questions of value belong to the perception of freedom. Unless they are answered, the radius of freedom cannot be outlined, and we cannot specify what we may lawfully defend against others and what we are justified in demanding of them.259 A theory of the Ought, and not only of the Is, must inform therefore the content of the idea of freedom.260

The quantitative imprecision which the turn towards the qualitative entails at times is not a loss in acuity, but rather a gain in proximity to the issue at hand. To paraphrase Aristotle: One should never be more precise than the topic allows.261 Otherwise, one exchanges uncertain truths for precise falsities. Whoever investigates an essentially humanistic phenomenon using the methods of the natural sciences should not be surprised if aspects residing outside the material and physical realm thereby evaporate. The theory of quantitative freedom is, however, lacking in precisely this critical self-reflection. It gives far too much currency to its reductionist picture of freedom as a commensurable commodity.

Yet, wherever freedom is perceived to be a naturally given capacity, fellow human beings appear first and foremost to be possible intruders.262 The social construction of freedom is overlooked263 and so the absurd practical consequence ensues that, the less individual freedom is socially influenced or co-determined the better. Freedom must consequently be sought in sovereign independence and every regulation of private freedom will be perceived as its potential negation.264 Accordingly, theories resting upon the logic of quantitative freedom regularly exhibit a tendency to push back, as far as possible, the limits of private freedom of choice. It is therefore no accident that the conception of a minimal state – caricatured in other places as a ‘night-watchman-state’ – enjoys great popularity amongst proponents of quantitative freedom.265

Quantitative theories of freedom typically only protect freedoms which one already (factually) possesses, and not those to which one perhaps (counterfactually) could have a right.266 They orientate themselves (extensionally) towards a freedom in its material formation – ownership of the individual’s body and possessions – not (intensionally) towards its ideal conceptual meaning. It does not optimize concrete opportunities, but rather maximizes abstract options – embodied in enforceable property-rights.267 The political community thus evaporates into a society obsessed with property and entitlements which, instead of enabling all-round freedom, is committed and obligated to the reciprocal protection of possessions and entitlements.268 Thus, in quantitative liberalism, society loses solidarity with regrettable consistency, as became clear with Hayek’s invective against social policy and the Rawlsian failure in the face of the challenges of global and intergenerational justice.

Yet, from a contractualist viewpoint such outcomes sadly appear logical. Why should we take into consideration human beings from whom we expect neither advantages nor disadvantages? Consequently, it would appear only consistent to limit solidarity within national boundaries, whenever disadvantageous repercussions (e.g. regarding economics or security) are not to be expected, and, conversely, no robust advantages are achievable. Therefore, in the framework of quantitatively-liberal theories, questions of global and intergenerational socioeconomic participation are willingly avoided or dealt with unwillingly and unkindly.

Nevertheless, on the horizon we can glimpse a change. While yesterday’s demigods of quantitative liberalism still pray for the transubstantiation of the earthy, everyday bread of economic contracts into the sanctified body of freedom,269 based on a magic supposedly dwelling within the Roman rule of the market that volenti non fit inuria (to a willing person, injury is not done), the symbols of this sacramental transformation are presently subjected to a sober critique. Obviously, only where no “asymmetries of power” distort the interests of the contractual partner can we say, that, actually, to a willing person, no injury is done. Genuine economic freedom for contracts presupposes “the absence of domination, not just the absence of interference”; otherwise it all too quickly befits “appalling contractual arrangements,” to which we, precisely in the interest and name of freedom, must refuse to agree to.270 Increasingly, therefore, even the proponents of quantitative theories resist the “libertarian thesis that only coercion undermines voluntariness.”271 From the long overdue confession that need can necessitate, there now grows, also in the positions of quantitative theories of freedom, a critical reflection upon the nature of economic freedom. It is now said that freedom in business in particular may not counter the idea of freedom in general; and therefore some Anglo-American liberals even demand “that no one may so acquire goods that others suffer severe loss of liberty as a result.”272

In the last decades, the idea of the admission of sociopolitical concerns into the concept of freedom itself, first introduced into positivist groundwater by Gerald MacCallum, found its way into the strata of Anglo-American philosophy. Analytic theories became infiltrated by the idea of conceptualizing freedom, not from the starting-point of unhindered actions, but rather from the finishing-line of available options. Freedom would then need to be measured less by means of the volume of the inlets or outlets, but rather by the whole reservoir of liquid options available to all. Thus, however, the flow of quantitative liberalism turns against the formerly dominant stream of libertarian market-idolatry and thus creates dangerous shallows for possessive individualism. While, until recently, the quantitatively-liberal waters coolly and quietly flowed past the sandbanks of poverty, some now produce, from inlets fed from left-libertarian estuaries, an inverse undercurrent, becoming increasingly stronger, which swirls asunder the once straight conservative alignment of quantitative freedom theories.

Perplexed, conservative libertarians find themselves confronted with cheeky questions, like, for example: “How is libertarian capitalism libertarian if it erodes the liberty of a large class of people?”273 Suddenly, there is talk of a universal empowerment to autonomy,274 in accordance with the insight that “a society is as free as its underdogs are.”275 This shakes the silent alliance between libertarian thinking and a politics directed against social justice. Hillel Steiner, for instance, washes down the libertarian assumption that freedom primarily manifests itself through rights to possession and disposal – with a shot of socialist logic. If everyone has an equal right to object-related freedom, then this right should also be due to all of them in more or less equal quantity. Everyone must therefore be able to start out in life from a quantitatively comparable starting-point. Since such an allocation of goods is unable to come about by itself, corresponding redistributions must be seen as producing freedom and accordingly demanded, according to Steiner.276

The prescriptive demand for support for solidarity born out by such arguments however clearly contradicts the descriptive methodological ideal of the quantitative logic which professedly aims to operate from the negation of the negation of already extant freedom-positions. Yet, the thinkers of “left-libertarianism” no longer consider solely the quantitative extension of factually given freedoms, but rather demand the establishment of counterfactual freedoms. With that, however, the matrix is covertly exchanged. The quality of the freedoms to which all are entitled assumes priority over the quantitative logic and consequently demands quantitative egality. Thus the plateau changes and – as we have already seen with Hayek and Rawls – we suddenly exchange a factual-quantitative framing for a counterfactual-qualitative one, which examines not only the number, but also the nature of our options.277 Covertly, the discourse has moved to qualitative premises.

This objection also affects the now fashionable attempts of libertarian paternalism278 to deflect the anti-libertarian critique through the integration of especially popular (social and environmental) policy demands. What is intended thereby is to understand the actual interests of individuals better than they themselves. Libertarian paternalist believe themeselves justified – until explicitly revoked on the part of those affected – even obligated, to bolster through state action the supposed interests of people (by means of the homo oeconomicus models). Allegedly, one thus secures more freedoms for individuals in the long run. Left to themselves, individuals would make too many (false) decisions running contrary to their true rationally-selfish interests, and thus over time unduly reduce the sphere of their options. Observed from this foil of ‘true’ interests orientated towards economic rationality, many familiar ways of life end up looking suspiciously ‘irrational.’ These, therefore, should in no way be maximized. Implicitly, however, even the explicit conceptions of freedom, upon which these lives are built, are devalued too. So, whoever, like the libertarian paternalists, prescribes the maxims of a rational maximization of self-interest as an outvotable default position also pursues value-orientated metaphysics – only secretly.

Dressed up as a qualitative algorithm, there consequently takes place on the part of the “left-libertarianism” as well as on the side of the “libertarian paternalism” a qualitative selection of supposedly more or less ‘good’ forms of freedom. Howsoever one twists and turns the matter, one cannot avoid therefore a substantial discussion of what should serve as freedom. The theory of freedom must be qualitatively orientated before it can devote itself to quantitative questions.

Footnotes

  1. 1.

    David Hume, Philosophical Essays Concerning Human Understanding (London: Cooper, 1801).

  2. 2.

    See Alfred Jules Ayer, Language, Truth and Logic (London, 1936)

  3. 3.

    Felix Oppenheimer, for instance, is a representative of this position. He writes: “An agreed descriptive language is a prerequisite for a fruitful discussion of normative issues” (Felix Oppenheimer, “‘Constraints on Freedom’ as a Descriptive Concept,” Ethics 95:2 (1985), 309).

  4. 4.

    Kramer, The Quality of Freedom, 59.

  5. 5.

    Ibid., 61.

  6. 6.

    This formulation is, as far as I am aware, found for the first time in Anatole France, Le lys rouge (Paris, 1984).

  7. 7.

    See Hillel Steiner, An Essay on Rights (Cambridge, MA, 1994).

  8. 8.

    See Christopher Megone, “One Concept of Liberty,” Political Studies 35:4 (1987), 621ff.

  9. 9.

    I have borrowed this example from Philippe van Parijs, see Parijs, Real Freedom for All, 14.

  10. 10.

    See Nussbaum, Frontiers of Justice, 165, 182.

  11. 11.

    “If we view […] agency as nothing but the pursuit of preference, or freedom as nothing by the absence of constraint, how are we to explain how some acts can be more central than others to the self, agency, freedom, identity or integrity […]?” (Onora O’Neil, Constructions of Reason: Explorations of Kant’s Practical Philosophy [Cambridge, 1989], 205).

  12. 12.

    See William E. Connolly, The Terms of Political Discourse (Oxford, 1993), 139–143.

  13. 13.

    See Serena Olsaretti, Liberty, Desert and the Market: A Philosophical Study (Cambridge, 2004), 148.

  14. 14.

    See Swanton, Freedom, 109–113.

  15. 15.

    See Felix E. Oppenheim, Political Concepts: A Reconstruction (Chicago, 1981), 53, 160.

  16. 16.

    See Jeremy Waldron, Liberal Rights: Collected Papers, 1981–1991 (Cambridge, 1993).

  17. 17.

    In my opinion William Connolly is correct to declare that the idea of freedom is thus “contested partly because of the way it bridges a positivist dichotomy between descriptive and normative concepts” (“Liberty as an ‘essentially contested concept,’” in Cramer (ed.) Freedom, 200).

  18. 18.

    David Hume, Theory of Knowledge: Containing the Enquiry Concerning Human Understanding (Austin, 1953), 156ff.

  19. 19.

    See Nussbaum, Creating Capabilities: The Human Development Approach, 87.

  20. 20.

    “Such cases strip contractarianism bare, so to speak, and reveal a face often concealed by the moralized elements present in the strongest such doctrines” (Nussbaum, Frontiers of Justice, 128f).

  21. 21.

    Hayek, Constitution of Liberty, 19.

  22. 22.

    Hayek, Constitution of Liberty, 407ff.

  23. 23.

    See William P. Baumgarth, “Hayek and Political Order: The Rule of Law,” Journal of Libertarian Studies 2 (1978), 11–28.

  24. 24.

    See Hayek, Constitution of Liberty, 54f.

  25. 25.

    See Morris M. Wilhelm, “The Political Thought of Friedrich A. Hayek,” POST Political Studies 20:2 (1972), 169–184.

  26. 26.

    Werner Keck, Zwischen evolutionärer und gesellschaftsvertraglicher Fundierung des Staates: Eine vergleichende Analyse der Staatsauffassungen von Rawls, Buchanan, Hayek un Nozick (Berlin, 1998), 212.

  27. 27.

    See Hayek, Constitution of Liberty, 16, 20.

  28. 28.

    See ibid., 79.

  29. 29.

    See ibid., 31.

  30. 30.

    See Hayek, Constitution of Liberty, 14.

  31. 31.

    This is according to the interpretation in H. B. Falkena, “On Hayek’s Philosophy of Limited Government and the Economic Order,” South African Journal of Economics 53:4 (1985), 235–243.

  32. 32.

    Hayek, The Constitution of Liberty, 19.

  33. 33.

    See ibid., 68.

  34. 34.

    See ibid., 60.

  35. 35.

    Jeremy Bentham, Étienne Dumont & Richard Hildreth, Theory of Legislation (London, 1887), 48.

  36. 36.

    For the theoretical connection with Kant (concerning freedom) and the remaining differences between both thinkers see Michael Kläver, Die Verfassung des Marktes: Friedrich August von Hayeks Lehre von Staat und Markt im Spiegel grundgesetzlicher Staats- und Verfassungsrechtslehre (Stuttgart, 2000), 18–31.

  37. 37.

    Friedrich August von Hayek, Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy (London, 1976), 166 n.24.

  38. 38.

    For more about Hayek’s reckless and, at times, clumsy Kantian musings see Hans Jörg Hennecke, Friedrich August von Hayek: Die Tradition der Freiheit (Düsseldorf, 2000), 287–294.

  39. 39.

    Hayek, Constitution, 21.

  40. 40.

    See ibid., 153.

  41. 41.

    See ibid., 142ff.

  42. 42.

    Christoph Zeitler in any case doubts Hayek’s self-assessment that he is only committed to a negative concept of freedom in Spontane Ordnung, Freiheit und Recht: Zur politischen Philosophie von Friedrich August von Hayek (Frankfurt am Main, 1995), 147ff.

  43. 43.

    See Hayek, Law, Legislation and Liberty, 43.

  44. 44.

    See Nikolas Roos, “Hayek’s Kantian Heritage and National Law” in Birner & van Zijp (eds.), Hayek, Co-ordination and Evolution: His Legacy in Philosophy, Politics, Economics and the History of Ideas (London & New York, 1994), 294.

  45. 45.

    See Lionel Lord Robbins, “Hayek on Liberty,” Economica 28:109 (1961), 66–81.

  46. 46.

    See Hayek, Law, Legislation and Liberty, 58ff. This contradicts Aimar Thierry, who establishes the thesis that Hayek’s normativity is purely hypothetically-universal in its nature – since it rests upon the subordinate survival interests of everyone, from which everyone’s interest in a productive socio-economic order is derived – because it merely deals with a normativity “without prescriptions.” See his “Coordination, Survival and Normativity: A Hayekian Perspective Revisited” in Birner et al. (eds.), F. A. Hayek as a Political Economist: Economic Analysis and Values (2002), 225f., 230.

  47. 47.

    In English: No penalty without a law. Further such common principles are, for instance, in dubio pro reo (in doubt, for the accused) and actori incumbat probatio (the onus of proof is incumbent on the plaintiff).

  48. 48.

    See Hardy Bouillon, Ordnung, Evolution und Erkenntnis: Hayeks Sozialphilosophie und ihre erkenntnistheoretische Grundlage (Tübingen, 1991), 59ff.

  49. 49.

    See John Gray, Hayek on Liberty (Oxford & New York, 1986), 31ff.

  50. 50.

    See also the differentiation from communitarianism with Barbara M. Rowland, Ordered Liberty and the Constitutional Framework: The Political Thought of Friedrich A. Hayek (Westport, 1987), 119ff.

  51. 51.

    See Theodore A. Burczak, “The Contradictions between Hayek’s Subjectivism and His Liberal Legal Theory” in Birner et al. (eds) in F. A. Hayek as a Political Economist: Economic Analysis and Values (London, 2002), 201.

  52. 52.

    See Ross, Hayek’s Kantian Heritage, 289.

  53. 53.

    See Hayek, Constitution of Liberty, 143f.

  54. 54.

    See Hayek, Constitution, 205ff., and Law, Legislation and Liberty, 44–60.

  55. 55.

    Zeitler, on the other hand, interprets the rule of law as a merely procedural criterion, ibid., 213.

  56. 56.

    For Kant’s concept of a regulative idea see Dietmar Köveker, Grenzverhältnisse: Kant und das “Regulative Prinzip” in Wissenschaft und Philosophie (1996).

  57. 57.

    Yet as Jacob Viner writes: “I do not see how this doctrine can be distinguished from “Social Darwinism” (“Review. Hayek on Freedom and Coercion,” Southern Economic Journal 27:3 [1961], 233).

  58. 58.

    See Hayek, Constitution, 12.

  59. 59.

    See ibid., 258.

  60. 60.

    See ibid., 261.

  61. 61.

    See ibid., 106.

  62. 62.

    See ibid., 107.

  63. 63.

    See ibid., 153.

  64. 64.

    See ibid., 154.

  65. 65.

    See ibid., 210.

  66. 66.

    Calvin Hoy believes that Hayek gives up the theory of consensus in Law, Legislation and Liberty because it is no longer explicitly mentioned there (see A Philosophy of Individual Freedom: The Political Thought of F. A. Hayek [Westport, Connecticut, 1984], 86); in my opinion it rather looks like Hayek feels that the two-level concept of democracy he worked-out in the meantime can deliver what his previous idea of a consensus legitimating unequal social distribution demanded; an interpretation supported also by the characteristic style of the treatment of public opinion as an additional criterion for political legitimacy in the first volume of Law, Legislation and Liberty.

  67. 67.

    See Friedrich A. von Hayek, Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy (London, 1979), 135.

  68. 68.

    See ibid., 99f.

  69. 69.

    See ibid., 104.

  70. 70.

    See ibid., 103–127.

  71. 71.

    For an example of this see Roald Hamowy’s critique in “The Hayekian Model of Government in an Open Society,” Journal of Libertarian Economics 6 (1982), 137–144.

  72. 72.

    Hayek, Law, Legislation and Liberty, 107.

  73. 73.

    See ibid., 109.

  74. 74.

    In this connection, I agree with Keck’s criticism that Hayek merely insufficiently worked out that part of his theory – without which it can win no normative independence; see Keck, Zwischen evoltionärer und gesellschaftsvertraglicher Fundierung des Staates, 239f.

  75. 75.

    For more information about the tension between Hayek’s historical evolutionism and the constructivist approach of his own constitutional model see Viktor Vanberg & James Buchanan, Liberaler Evolutionismus oder vertragstheoretischer Konstitutionalismus? Zum Problem institutioneller Reformen bei F. A. von Hayek and J. M. Buchanan (Tübingen, 1981), 35ff.

  76. 76.

    See Hoy, A Philosophy of Individual Freedom, 110.

  77. 77.

    The decisive passage runs: “The enumeration of certain rights in this Constitution shall not be construed to deny or disparage others retained by the people”; see Hayek, Law, Legislation and Liberty, 111; see also 185f.

  78. 78.

    See G. R. Steele, The Economics of Friedrich Hayek (New York, 1993), 47.

  79. 79.

    Hayek, The Constitution of Liberty, 231.

  80. 80.

    See ibid.

  81. 81.

    See ibid., 221f.

  82. 82.

    See ibid., 220.

  83. 83.

    See ibid., 220–223.

  84. 84.

    See Steve Fleetwood, Hayek’s Political Economy: The Socioeconomics of Order (London & New York, 1995).

  85. 85.

    See Hayek, Law, Legislation and Liberty, 44f.

  86. 86.

    See Hayek, The Constitution of Liberty, 222.

  87. 87.

    Morris Wilhelm for instance questions where the criterial boundary for a quite generally compulsorily ordered state-culture could lie if the state took the step of financing some selected cultural interests (building of theatres, etc.) in The Political Thought of Friedrich A Hayek, 171f.

  88. 88.

    See Keck, Zwischen evolutionärer und gesellschaftsvertraglicher Fundierung des Staates, 216.

  89. 89.

    See Hayek, The Constitution of Liberty, 316.

  90. 90.

    See Hayek, Law, Legislation and Liberty, 95f.

  91. 91.

    See Hayek, Constitution, 317.

  92. 92.

    See Hayek, Law, Legislation and Liberty, 67ff.

  93. 93.

    For information about Hayek’s conception of market-freedom see Kläver, Die Verfassung des Marktes, 165ff.

  94. 94.

    See Ludwig von Mises, Nationalökonomie: Theorie des Handelns und Wirtschaften (München, 1980), 89ff.

  95. 95.

    Von Mises, Nationalökonomie, 44f.

  96. 96.

    See Hayek, The Constitution of Liberty, 332.

  97. 97.

    See Gerhard Wegner, Wohlfahrtsaspekte evolutorischen Marktgeschehens: Neoklassisches Fortschrittsverständnis und Innovationspolitik aus ordnungstheoretischer Sicht (Tübingen, 1991), 103ff.

  98. 98.

    See Hayek, The Constitution of Liberty, 87.

  99. 99.

    See Hayek, Law, Legislation and Liberty, 72, 75.

  100. 100.

    See ibid., 82.

  101. 101.

    See Hayek, Constitution of Liberty, 192.

  102. 102.

    See Reinhard Zintl, Individualistische Theorien und die Ordnung der Gesellschaft: Untersuchungen zur Politische Theorie von James M. Buchanan und Friedrich A. V. Hayek (Berlin, 1983), 226.

  103. 103.

    See Hayek, Law, Legislation and Liberty, 96f.

  104. 104.

    The work which most significantly influenced Hayek was – according to his own statements – Mary Gregor’s Laws of Freedom: A Study of Kant’s Method of Applying the Categorical Imperative in the Metaphysik der Sitten (Oxford & New York, 1963), which only appeared three years after the publication of his Constitution of Liberty.

  105. 105.

    This is also reflected within the literature on Hayek. Bernhard Erning’s otherwise very informative and balanced portrayal of the positions of Kant and Hayek, for instance, overlooks the dimension of distributive justice in Kant, see: Hayek’s Moralphilosophie: Freiheit und Gerechtigkeit in der Grossen Gesellschaft (1993), 107–132.

  106. 106.

    See Hayek, Law, Legislation and Liberty, 42.

  107. 107.

    About this see also Kläver, Die Verfassung des Marktes, 59–76.

  108. 108.

    See Köhler, Iustitia distributiva, 457ff; for a corresponding criticism of Hayek, see also Stephan Rothlin, Gerechtigkeit in Freiheit: Darstellung und kritische Würdigung des Begriffs der Gerechtigkeit im Denken von Friedrich August von Hayek (Frankfurt am Main, 1992), 188.

  109. 109.

    See Hayek, The Constitution of Liberty, 202.

  110. 110.

    See Hayek, Law, Legislation and Liberty, 66.

  111. 111.

    See Hayek, The Constitution of Liberty, 257.

  112. 112.

    See also the (equally Kantian) criticism of Kläver in Die Verfassung des Marktes, 246ff., 299f.

  113. 113.

    See Hayek, Constitution, 135.

  114. 114.

    See David Miller, “Constraints on Freedom,” Ethics 94:1 (1983), 66–86 and John Gray, “Hayek on Liberty, Rights and Justice,” Ethics 92:1 (1981), 73–84.

  115. 115.

    See Hayek 1976, 98.

  116. 116.

    See Wilhelm, The Political Thought of Friedrich A. Hayek, 168.

  117. 117.

    First edition 1971. Quotations are from the following edition: John Rawls, A Theory of Justice (Cambridge, MA, 1999).

  118. 118.

    About this see Onora O’Neill, “Autonomy, Coherence, and Independence” in Milligan & Miller (eds.), Liberalism, Citizenship and Autonomy, 214.

  119. 119.

    See John Rawls, A Theory of Justice, 224.

  120. 120.

    See Henry Sidgwick, The Methods of Ethics (Indianapolis, 1981), 511ff. Rawls found this study so significant that he attached it as an appendix to his edition of Sidgwick’s main work, The Methods of Ethics.

  121. 121.

    See ibid.

  122. 122.

    Ibid., 226.

  123. 123.

    See ibid., 14f.

  124. 124.

    Ibid., 178.

  125. 125.

    Ibid.

  126. 126.

    Ibid.

  127. 127.

    Ibid.

  128. 128.

    See Onora O’Neill, “The Most Extensive Liberty” in Proceedings of the Aristotelean Society 80 (1979), 45–59.

  129. 129.

    Rawls, A Theory of Justice, 224.

  130. 130.

    Ibid., 225.

  131. 131.

    Ibid.

  132. 132.

    See Larry Krasnoff, “How Kantian is Constructivism,” Kant-Studien 90:4 (1999), 385–409.

  133. 133.

    See Otfried Höffe, “Öffentliche oder politische Vernunft? Zu Rawls II,” Zeitschrift für Philosophische Forschung (1994), 259–269.

  134. 134.

    See Marcus Willaschek, “Right and Coercion: Can Kant’s Conception of Right be Derived from his Moral Theory,” International Journal of Philosophical Studies 17:1 (2009), 49–70.

  135. 135.

    See Thomas Pogge, “Is Kant’s Rechtslehre Comprehensive?,” Southern Journal of Philosophy 36:1 (1998), 149.

  136. 136.

    See Gregor, Laws of Freedom, 67.

  137. 137.

    Rawls, A Theory of Justice, 499.

  138. 138.

    See ibid., 39.

  139. 139.

    Ibid.

  140. 140.

    Ibid., 37.

  141. 141.

    Ibid., 12.

  142. 142.

    Ibid., 11.

  143. 143.

    See John Martin Gillroy, “Making Public Choices: Kant’s Justice from Autonomy as an Alternative to Rawls’ Justice as Fairness,” Kant-Studien 91:1 (2009), 44–72.

  144. 144.

    Concerning the following, see Robert S. Taylor, Reconstructing Rawls: The Kantian Foundations of Justice and Fairness (2011), 280ff.

  145. 145.

    See Dieter Schönecker, “Das gefühlte Faktum der Vernunft: Skizze einer Interpretation und Verteidigung,” Deutsche Zeitschrift für Philosophie (2013) 1, 91–107.

  146. 146.

    “For Kant … the theory simply defends the principles that ordinary agents accept. But for … Rawls, theory claims to construct the principles for society as a whole” (Krasnoff, How Kantian is Constructivism?, 409).

  147. 147.

    Rawls, A Theory of Justice, 11.

  148. 148.

    See for example Martha Nussbaum’s counter-project: “My theory speaks only of a social minimum and does not address inequalities above that (very ample) social floor” (Frontiers of Justice, 178).

  149. 149.

    Rawls, Theory of Justice, 4. In contrast, Martha Nussbaum argues that this fixation with reciprocal advantage simply presents a “wrong account of the primary basis for social cooperation” (Frontiers of Justice, 129). In the following I will present arguments agreeing with this judgment.

  150. 150.

    Rawls, Theory of Justice, 126.

  151. 151.

    Ibid., 148.

  152. 152.

    See Brian Barry, Justice as Impartiality (Oxford & New York, 1995).

  153. 153.

    Rawls, Theory of Justice, 86.

  154. 154.

    See Martha Nussbaum, Frontiers of Justice, 16f.

  155. 155.

    Rawls, Theory of Justice, 505.

  156. 156.

    Ibid., 25.

  157. 157.

    Ibid., 129.

  158. 158.

    Ibid., 506.

  159. 159.

    See Fred D’Agostino, Free Public Reason: Making it up as we go (New York, 1996), 40–44.

  160. 160.

    About the following, see Martha Nussbaum, Frontiers of Justice, 135–145.

  161. 161.

    See Bernard P. Dauenhauer, “Response to Rawls” in Cohen & Marsh (ed.), Ricoeur as Another: The Ethics of Subjectivity (New York, 2002), 208ff.

  162. 162.

    Rawls, A Theory of Justice, 491.

  163. 163.

    See Michael J. Sandel, “Review of John Rawls: Political Liberalism,” Harvard Law Review 107: 7 (1994), 1780ff.

  164. 164.

    See William A. Galston, “Two Concepts of Liberalism,” Ethics 105:3 (1995), 516–534.

  165. 165.

    First edition, 1993. Quotations are from the second edition: John Rawls, Political Liberalism (New York, 1996).

  166. 166.

    First edition, 1999. Quotations are from the fourth edition: John Rawls, The Law of People: With ‘The Idea of Public Reason Revisited’ (Cambridge, MA, 2002).

  167. 167.

    John Rawls, Justice and Fairness: A Restatement (Cambridge, MA, 2001).

  168. 168.

    Ibid., 112–114.

  169. 169.

    Martha Nussbaum pronounces: “However, at the end of the day Rawls was unwilling to drop the social contract structure in favour of a more Kantian theory” (Creating Capabilities, 85).

  170. 170.

    Rawls, Justice and Fairness: A Restatement, 112–114.

  171. 171.

    Rawls, Political Liberalism, 14.

  172. 172.

    Ibid. In the light of that, Martha Nussbaum rightly criticises Rawls for nonchalantly skating around the thereby produced contradiction with his earlier work: “He is simply silent about the apparent contradiction” (Frontiers of Justice, 59).

  173. 173.

    Rawls, Justice and Fairness: A Restatement, 112–114.

  174. 174.

    Ibid., 114.

  175. 175.

    Rawls, Political Liberalism, 103.

  176. 176.

    See Patrick Neal, “Does He Mean What He Says? (Mis)Understanding Rawls’ Practical Turn,” Polity 27:1, 77ff. especially 87.

  177. 177.

    “Political liberals will, one assumes, defend liberalism with arms, but they will not do so with words” (J. Judd Owen, Religion and the Demise of Liberal Rationalism: The Foundational Crisis of the Separation of Church and State (Chicago, 2001), 120.

  178. 178.

    Rawls, Political Liberalism, 38.

  179. 179.

    For Habermas’ critique of Rawls’ concept of public reason, see Jürgen Habermas, “Reconciliation Through the Public Use of Reason: Remarks on John Rawls’ Political Liberalism,” The Journal of Philosophy 92:3 (1995), 119ff.; and Cristina Lafont, “Political Justice? Implications of the Rawls-Habermas Debate for Discourse Ethics,” Philosophy of Social Criticism 29:2 (2003), 171ff.

  180. 180.

    See Richard Rorty, Contingency, Irony and Solidarity (New York, 1989), 57.

  181. 181.

    See Farid Abdel-Nour, “Liberalism and Ethnocentricism,” Journal of Political Philosophy 8:2 (2000), 213.

  182. 182.

    See Rawls, The Laws of Peoples, 156.

  183. 183.

    See Thomas Nagel, “Rawls and Liberalism” in Freeman (ed.), The Cambridge Companion to Rawls (Cambridge, 2003), 83ff.

  184. 184.

    See Rawls, Political Liberalism, 100.

  185. 185.

    See Pogge, Is Kants Rechtslehre Comprehensive?

  186. 186.

    See Marcus Willaschek, “Which Imperatives for Right? On the Non-Prescriptive Character of Juridical Laws in Kant’s Metaphysics of Morals” in Kant’s Metaphysics of Morals: Interpretative Essays (Oxford, 2002), 68.

  187. 187.

    See Beate Rössler, “Kongenial und aufmerksam. Rezension zu John Rawls: Geschichte der Moralphilosophie,” Deutsche Zeitschrift für Philosophie 51:2 (2003), 325–329.

  188. 188.

    See Rawls, Political Liberalism, 144.

  189. 189.

    “Rather than presuppose much more than Rawls does … he in fact presupposes much less. He makes no appeal to fundamental ideas prevalent in the public culture of his society, nor does he insist that persons have certain moral powers and matching higher-order interests in their development and exercise, nor does he seek to identify all-purpose means needed for realizing the conceptions of the good that citizens of a society like his own are likely to have (Pogge, Is Kants Rechtslehre Comprehensive?, 149).

  190. 190.

    See Rawls, Political Liberalism, 567.

  191. 191.

    See Banu Kilan, “J. Rawls’ Idea of an ‘Overlapping Consensus’ and the Complexity of ‘Comprehensive Doctrines,’” Ethical Perspectives 16:1 (2009), 21–60.

  192. 192.

    See William Arthur Galston, Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice (2002).

  193. 193.

    See Steven J. Kautz, Liberalism and Community (Ithaca, 1995), 179f.

  194. 194.

    See Owen, Religion and the Demise of Liberal Rationalism, 120.

  195. 195.

    Rawls, Political Liberalism, 51.

  196. 196.

    Ibid., 50.

  197. 197.

    See Owen, Religion and the Demise of Liberal Rationalism, 113f.

  198. 198.

    “Rawls seems to suppose that a fundamentalist can believe in the unambiguity of God’s commandments for human life … while nevertheless putting these commandments aside politically.” That however demands “a change in ones beliefs concerning God’s will. One must come to believe that it is consistent with God’s will that it be set aside in politics” (ibid., 117).

  199. 199.

    Rawls, Political Liberalism, 152.

  200. 200.

    Ibid.

  201. 201.

    See Stephen Macedo, “Liberal Civic Education and Religious Fundamentalism: The Case of God v. John Rawls?,” Ethics 105:3 (1995), 482ff.

  202. 202.

    Rawls, Political Liberalism, 152f.

  203. 203.

    See Martha Nussbaum, Frontiers of Justice, 6.

  204. 204.

    See Charles E. Larmore, The Morals of Modernity (Cambridge & New York, 1996).

  205. 205.

    See Gillroy, Making Public Choices.

  206. 206.

    “Unlike Rawls’ original position … the principle of publicity is not a hypothetical choice situation in which ordinary citizens will place or imagine themselves. The substantive work of Kant’s political philosophy is done not by the constructive procedure of the social contract, but by the constructed ideas of publicity and possible political agency. … Kant is not a hypothetical proceduralist” (Krasnoff, How Kantian Is Constructivism?, 405).

  207. 207.

    Rawls, Justice as Fairness: A Restatement, 24.

  208. 208.

    See Brian Barry, The Liberal Theory of Justice: A Critical Examination of the Principal Doctrines in ‘A Theory of Justice’ by John Rawls (Oxford, 1973); see also Barry, Justice as Impartiality.

  209. 209.

    See Rawls, A Theory of Justice, 504–512.

  210. 210.

    Martha Nussbaum’s Frontiers of Justice contains a detailed discussion of that difficulty in Rawls’ work. She shows that Rawls could only have solved the problem of an equal consideration of the human rights of people with disabilities if he were ready to resign himself to modifying the essential foundations of his contractualist theory; which he, however, was, as is well known, not ready to do. I have nothing to add to this analysis.

  211. 211.

    See Claus Dierksmeier, “John Rawls on the Rights of Future Generations” in Jörg Tremmel (ed.), Handbook of Intergenerational Justice (Cheltenham & Northampton, MA, 2006), 73–85.

  212. 212.

    See Jörg Tremmel, “Welche Prinzipien der Generationengerechtigkeit würden Vertreter aller Generationen unter dem Rawls’schen Schleier der Unwissenheit festlegen?,” Zeitschrift für politische Philosophie (2009).

  213. 213.

    See Rawls, Political Liberalism, 271ff. and Rawls, The Law of Peoples, 159ff.

  214. 214.

    See Mark Anderson, Mario Teisl & Caroline Noblet, “Giving Voice to the Future in Sustainability: Retrospective Assessment to Learn Prospective Stakeholder Engagement,” Ecological Economics 84 (2012), 1–6.

  215. 215.

    Rawls, Political Liberalism, 21.

  216. 216.

    See Rawls, Justice as Fairness: A Restatement, 107.

  217. 217.

    See Stephen Macedo, Diversity and Distrust (Cambridge, MA, 2000), 183.

  218. 218.

    See David Ingram, “Between Political Liberalism and Postnational Cosmopolitanism: Toward an Alternative Theory of Human Rights,” Political Theory 31:3 (2003), 359–391; Charles R. Beitz, “Human Rights as a Common Concern,” American Political Science 95:2 (2001), 269. In contrast, an extended defense of Rawls’ position is to be found in David A. Reidy, “Rawls on International Justice: A Defense,” Political Theory 32:3 (2004), 291–319.

  219. 219.

    See Rawls, Justice as Fairness: A Restatement, 70.

  220. 220.

    Ibid., 79.

  221. 221.

    Rawls, The Law of Peoples, 69.

  222. 222.

    See ibid., 65–71.

  223. 223.

    Rawls, A Theory of Justice, 8.

  224. 224.

    Amartya Sen, The Idea of Justice, 127.

  225. 225.

    Nussbaum, Frontiers of Justice, 233.

  226. 226.

    In Frontiers of Justice Martha Nussbaum thus remarks that “Rawls seems to accord legitimacy to the status quo, even when it is not fully accountable to people. One of the things people themselves might want out of international relations is to help in overthrowing an unjust regime, or winning full inclusion in one that excludes them” (ibid., 234).

  227. 227.

    Amartya Sen, The Idea of Justice, 127.

  228. 228.

    See: Charles R. Beitz, “Rawls’ “Law of Peoples,”” Ethics 110:4 (2000), 669; Allen Edward Buchanan, “Rawls’ Laws of Peoples: Rules for a Vanished Westphalian World,” Ethics 110:4 (2000), 697; Simon Caney, “Cosmopolitanism and the Law of Peoples,” Journal of Political Philosophy 10:1 (2002), 95–123; Andreas Føllesdal & Thomas Pogge, Real World Justice: Grounds, Principals, Human Rights, and Social Institutions (Dordrecht, 2005); Andrew Kuper, “Rawlsian Global Justice: Beyond the Law of Peoples to a Cosmopolitan Law of Persons,” Political Theory 28:5 (2000), 640–674; Kok-Chor Tan, “Review of The Law of Peoples: With ‘The Idea of Public Reason Revisited,’” Canadian Journal of Philosophy 31:1 (2001), 113. A – in my opinion – unconvincing defense of the Rawlsian standpoint in regard to globalization ethics is to be found in Huw Lloyd Williams, On Rawls, Development and Global Justice: The Freedom of Peoples (Basingstoke & New York, 2011).

  229. 229.

    For a defense of the modifications in the concept of the original position see Terence Kelly, “Sociological not Political: Rawls and the Reconstructive Social Sciences,” Philosophy and the Social Sciences 31:1 (2001), 3.

  230. 230.

    See Martha Nussbaum’s critique of this in Frontiers of Justice, 235ff. and especially 301ff.

  231. 231.

    See Brian J. Shaw, “Rawls, Kant’s Doctrine of Right, and Global Distributive Justice,” The Journal of Politics 67:1 (2005), 220–249.

  232. 232.

    Rawls, The Law of Peoples, 108.

  233. 233.

    Martha Nussbaum quite rightly notes in regard to Rawls that one can in no way cover up questions of global justice with appeals to “thrift and virtue” (Frontiers of Justice, 240). Rawls, on the other hand, “ratified philosophically what the powerful nations of the world, especially the United States, like to do anyway: they pretend their system is fixed and final, and resist with might and main any demand that they change internally, whether in matters of human rights or in environmental matters of economic policy, either in response to the situation of the rest of the world or in response to international treaties and agreements […] In the real world, however, we see this tactic for what it is: an arrogant mentality that is culpably unresponsive to grave problems. One should not grant it philosophical respectability” (ibid., 236).

  234. 234.

    See ibid., 20f.

  235. 235.

    See ibid., 262ff.

  236. 236.

    Ibid., 235.

  237. 237.

    Ibid., 273.

  238. 238.

    Ibid., 236.

  239. 239.

    Ibid.

  240. 240.

    Martha Nussbaum likewise pronounces the following verdict upon Rawls’ approach: “So we must have a richer account of the purposes these very different nations pursue together” (ibid. 249).

  241. 241.

    See Feinberg, Freedom and Fulfillment.

  242. 242.

    See Charles Taylor, “What’s Wrong with Negative Liberty? in Philosophical Papers, vol. 2 (Cambridge, 1985), 211–229.

  243. 243.

    See Ronald Dworkin, Taking Rights Seriously (London, 1977), 268.

  244. 244.

    Nussbaum, Creating Capabilities, 72.

  245. 245.

    Ibid.

  246. 246.

    Ibid., 73.

  247. 247.

    See Dworkin, The Theory and Practice of Autonomy, 15.

  248. 248.

    Quine thus already points out that we occasionally long for a “freedom of second order: freedom from decision” (William van Orman Quine, Quiddities: An Intermittently Philosophical Dictionary [Cambridge, MA, 1987], 68). Alain Ehrenberg, Das erschöpfte Selbst: Depression und Gesellschaft in der Gegenwart (Frankfurt am Main, 2008) treats in detail the psychological dimensions of such an escape from the excessive demands of autonomous life.

  249. 249.

    See Axel Honneth, “Organized Self-Realization,” European Journal of Social Theory 7:4 (2004), 463–478 and Anders Petersen, “Authentic Self-Realization and Depression,” International Sociology 26:1 (2011), 5–24.

  250. 250.

    See Dworkin, Taking Rights Seriously, 268: “It is very difficult to think of liberty as a commodity.” See also Will Kymlicka, Liberalism, Community and Culture (Oxford, 1989).

  251. 251.

    See Ian Carter, A Measure of Freedom (Oxford, 1999), 50–52.

  252. 252.

    Ibid., 174.

  253. 253.

    See Wertheimer, “Social Theory and the Assessment of Social Freedom,” Polity 7:3 (1975), 334–360.

  254. 254.

    See Cohen, Self-Ownership.

  255. 255.

    Proudhon, Traité du domaine de propriété, ou de la distinction des biens; considérés principalement par rapport au domaine privé (Paris, 1862), 37.

  256. 256.

    See Connolly, The Terms of Political Discourse, 141: “Without the normative point of view from which the concept is formed we would have no basis for deciding what ‘descriptive terms’ to include or exclude in the definition.”

  257. 257.

    See David Miller, “Reply to Oppenheim,” Ethics 95:2 (1985), 313.

  258. 258.

    See Connolly, The Terms of Political Discourse, 142: “To refuse to bring these considerations into one’s deliberations about ‘freedom’ is to deny oneself access to the very consideration that can inform judgment about the concept or to delude oneself by tacitly invoking the very considerations formally eschewed.”

  259. 259.

    See Kristján Kristjánnson, Social Freedom: The Responsibility View (Cambridge & New York, 1996), 32.

  260. 260.

    See Richard E. Flathman, The Philosophy and Politics of Freedom (Chicago, 1987), 105.

  261. 261.

    Aristotle, Nichomachean Ethics I, 3 1094b.

  262. 262.

    “That individual freedom enables every human being to find in other human beings not the manifestation, but rather the limits of his own freedom (Karl Marx, Werke [Berlin, 1988], 365).

  263. 263.

    See Guido de Ruggiero, The History of European Liberalism (London & New York, 1927).

  264. 264.

    See John Stuart Mill, On Liberty and Other Essays (Oxford & New York, 1991), 8.

  265. 265.

    See Macpherson, Democratic Theory, 91.

  266. 266.

    See Cohen, Self-Ownership.

  267. 267.

    “In the profoundest sense there are no rights but property rights. […] Each individual, as a natural fact, is the owner of himself, the rule of his own person. Then, “human” rights of the person … are, in effect, each man’s property right in his own being, from this right stems his right to the material goods he has produced” (Narveson, The Libertarian Idea, 175); see also Murray Newton Rothbard, Government and the Economy (Kansas City, 1977), 238.

  268. 268.

    See Harold Laski, The Rise of European Liberalism (London, 1962), 105.

  269. 269.

    See Robert Nozick, Anarchy, State, and Utopia (Oxford, 1975), 262ff.

  270. 270.

    See Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford & New York, 1997), 65f.

  271. 271.

    See Olsaretti, Liberty, Desert and the Market, 149.

  272. 272.

    Cohen, Self-Ownership, 37.

  273. 273.

    Cohen, ibid.

  274. 274.

    If we see “freedom as the non-restriction of options, rather than the absence of impediments” (Stanley Benn & W. L. Weinstein, “Being Free to Act and Being a Free Man,” Mind 80 (1971), 201) then it is also clear that social assistance for the acquisition of freedom belongs to a liberal philosophy just as much as the defense of freedoms against impediments.

  275. 275.

    Bay, The Structure of Freedom, 7.

  276. 276.

    See Steiner, An Essay on Rights, 28.

  277. 277.

    See Cohen, Self-Ownership, 53.

  278. 278.

    About libertarian paternalism see Richard Thaler & Cass Sustein, “Libertarian Paternalism,” The American Economic Review 93:2 (2003), 175–179. For the current discussion, see Nick Gill & Mathew Gill, “The Limits to Libertarian Paternalism: Two New Critiques and Seven Best Practice Imperatives,” Environment and Planning, 30:5 (2012), 924–940; Riccardo Rebonato, Taking Liberties: A Critical Examination of Libertarian Paternalism (2012); Mozaffar Qizilbash, “Sugden’s Critique of Sen’s Capability Approach and the Dangers of Libertarian Paternalism,” International Review of Economics 58:1 (2011), 21–42; Jessica Pykett et al., “Interventions in the Political Geography of ‘Libertarian Paternalism,’” Political Geography 20:6 (2011), 301–310; Jennifer Prah Ruger, Health and Social Justice (Oxford & New York, 2010).

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Authors and Affiliations

  • Claus Dierksmeier
    • 1
  1. 1.Institute of Political ScienceUniversity of TübingenTübingenGermany

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