John Kilcullen
Copyright (c) 1996, R.J. Kilcullen.
There are many possible liberties, including freedom of speech, freedom of conscience, religious freedom, freedom of the person (the rule of law, freedom from arbitrary arrest), freedom to acquire private property, certain political rights (the right to vote, to stand for office), etc. (American constitutional debates have produced a large literature on these topics; see for example M. Konvitz, Fundamental Liberties of a Free People.) Rawls does not discuss these in detail.
Those who are poor, ignorant, lack the means, may not be able to take advantage of their rights (or liberties). Some writers have suggested that such circumstances (e.g. poverty) may violate such rights, thus building into the concept of the right the circumstances that make it possible to exercise it. Rawls does not follow this line. He does not say that poverty etc. violate or restrict the right; he says that they diminish its worth or value to the individual who has it. Thus he distinguishes between the right or liberty and its value or worth.
The general conception is simply the difference principle applied to all kinds of primary goods:
'All social primary goods - liberty and opportunity, income and wealth, and the bases of self-respect - are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favoured' (p. 303).
The general conception would allow inequalities of liberty - it would allow, say, slavery, if it could be argued truly that this would be best on the whole even for the slaves, e.g. that they would be kept alive in reasonable condition because of the productivity enforced upon them. You might suspect that this could never be true. But the point is that if it were true, then the general conception would allow slavery, whereas the special conception would not even on that hypothesis.
The special conception rules out any trade-off between liberty and other primary goods: it will not allow restriction of liberty for the sake of productivity. However, it will allow the restriction of one liberty to enhance another liberty. 'Liberty can be restricted only for the sake of liberty itself' (p. 244). We will return to this below.
Rawls says that the special conception prevails in all societies except the poorest and least civilized. 'The supposition is that if the persons in the original position assume that their basic liberties can be effectively exercised, they will not exchange a lesser liberty for an improvement in their economic well-being, at least not once a certain level of wealth has been attained. It is only when social conditions do not allow the effective establishment of these rights that one can acknowledge their restriction. The denial of equal liberty can be accepted only if it is necessary to enhance the quality of civilization so that in due course the equal freedoms can be enjoyed by all... Eventually there comes a time in the history of a well-ordered society beyond which the special form of the two principles takes over and holds from then on' (p. 542). When the obstacles to exercise that reduce the 'worth' of liberty are overcome there is 'a growing insistence upon the right to pursue our spiritual an cultural interests' (p. 543). 'Under favourable circumstances the fundamental interest in determining our plan of life eventually assumes a prior place... [because of] the central place of the primary good of self-respect and the desire of human beings to express their nature in a free social union with others. Thus the desire for liberty is the chief regulative interest that the parties must suppose they all will have in common in due course' (ibid.).
A high priority for liberty is also suggested by the theory of primary goods, especially in its later form (in Rawls's article, 'Kantian Constructionism'), in which they are related to the 'higher-order interests'. Liberty, rather than wealth (once the minimum is assured) is what we most need to be a person rationally forming, revising and pursuing ends, or a 'plan of life'. Self-esteem is an important primary good, and 'the basis for self-esteem in a just society is not... one's income share but the publicly affirmed distribution of fundamental rights and liberties' (ibid.), 'the public affirmation of the status of equal citizenship' (p. 545). To trade off equal liberty for income would diminish self-respect - those with less liberty would have to regard themselves as inferior in the public life of their society.
Another consideration supporting high priority for liberty is what Rawls calls the 'Aristotelian principle'. It is best to have a comprehensive and long-term life plan because its execution will involve a more complex combination of abilities. 'The Aristotelian Principle states that other thing equal human beings enjoy the exercise of their realized capacities... and that this enjoyment increases the more the capacity is realized, or the greater its complexity' (p. 414; see 426 for explanation of the (dubious) relation to Aristotle). 'The intuitive idea here is that human beings take more pleasure in doing something as they become more proficient at it, and of two activities they do equally well, they prefer the one calling on a larger repertoire of more intricate and subtle discriminations' (p. 426). It follows (and this is Aristotelian) that the good consists in doing things, and for action liberty is more important than material possessions (once a minimum is assured).
Rawls distinguishes two kinds of principles of individual justice. Some have to do with obligations, others with duties. Many people use the words 'duty' and 'obligation' as interchangeable. Others, including Rawls, distinguish: an obligation arises out of some voluntary act you have done, whereas a duty is something you owe apart from any voluntary undertaking. There is a real distinction here, even if the distinction between 'duty' and 'obligation' is artificial. For example, the voluntary act of making a promise puts you under an obligation to do whatever you have promised. On the other hand you may have a duty to rescue someone from a burning car, even if you have never done anything to entitle that person to call on you for help.
Rawls thinks that in the Original Position people will see the point of accepting principles requiring them to discharge various obligations and duties. Under the head of obligations, the chief principle is what he calls 'fair play', which he formulates thus: If you have voluntarily accepted benefits under a certain social practice, then when under this practice you ought to benefit others, you must play your part even at some cost to yourself. For example, if promising is a social practice from which you have benefited, then if you make a promise you must keep it. (Even if no one has previously kept a promise made to you, you have at least enjoyed the benefit for the sake of which you made this promise - you made the promise for a reason, to get some benefit as a result of someone's believing your promise.) Other examples of 'fair play': if your candidate wins an election and holds office, then if next time your candidate loses you should allow the winner to hold the office. To quit when the game goes against you is not 'fair play'.
As for duties, the most important is the duty to support the establishment and maintenance of just social institutions. In the original position you decide on the principles of justice for institutions, but deciding does not actually establish them. If you come out from behind the veil of ignorance and find that the existing institutions do not satisfy the principles of justice for institutions then you should do what you reasonably can (it is a somewhat vague duty) to bring just institutions into being. That a person should do this is a principle of justice for the individual that you would adopt behind the veil of ignorance. This is not an obligation but a duty, since it is incumbent upon you apart from any voluntary commitment you may have made to help establish justice: you ought to help anyway.
In this connection Rawls gives an interesting treatment of the duty to obey the existing law, and the right and (sometimes) duty to change it if necessary by illegal means, and the duty to be reasonably tolerant of other people who (in your opinion wrongly) want to change the law and use illegal means. Such questions arise when society is approximately but not perfectly just. Insofar as the existing order is just you should support it, not undermine it; and insofar as you enjoy benefits under it you have an obligation in fair play to obey its demands upon you, even if they are (somewhat) unjust. On the other hand, the duty to work toward more perfect justice may best be performed by means of civil disobedience or even rebellion (p. 373). Others who mistakenly think that the existing arrangements are unjust who adopt civil disobedience or rebellion as means toward what they think justice requires should be treated leniently out of respect for their concern for justice; they should not be treated simply as criminals. See 'The Justification of Civil Disobedience' in H. Bedau (ed.) Civil Disobedience; and A Theory of Justice, p. 363-91. 'By engaging in civil disobedience one intends... to address the sense of justice of the majority and to sever fair notice that in one's sincere and considered opinion the conditions of free cooperation are being violated. We are appealing to others to reconsider, to put themselves in our position, and to recognise that they cannot expect us to acquiesce indefinitely in the terms they impose upon us' (p. 383).
'A person is happy... during those periods when he is successfully carrying through a rational plan [of life] and he is with reason confident that his efforts will come to fruition... Yet it does not follow that in advancing a rational plan one is pursuing happiness, not at least as this is normally meant... The pursuit of happiness often suggests the pursuit of certain sorts of ends, for example, life, liberty, and one's own welfare. Thus persons who devote themselves selflessly to a righteous cause, or who dedicate their lives to furthering the well-being of others, are not normally thought to seek happiness... They do not have the kinds of aims that fall under this heading... Yet [such people]... are in fact happy when their plans succeed. Although they do not strive for happiness, they may nevertheless be happy in advancing the claims of justice and the well-being of others, or in attaining the excellences to which they are attracted' (p. 550-1).
(What Rawls is saying here is again quite Aristotelian. Aristotle does not mean by eudaimonia what we usually mean by happiness, a cheerful state of mind. He means activity in accordance with virtue, and says that people active in accordance with virtue do experience satisfaction, though having that experience is not the aim of their activity.)
John Rawls, 'The Idea of an Overlapping Consensus', Oxford Journal of Legal Studies, 7 (1987), pp. 1-25.
Jean Hampton, 'Should political philosophy be done without metaphysics?', Ethics, 99 (1989), pp. 791-814 (BJ1.I6) (criticises Rawls).
Richard Rorty, 'The Priority of Democracy to Philosophy', in The Virginia Statute of Religious Freedom (KFV2812.R45.V57), pp. 257-282 (supports Rawls).
Since 1980 Rawls has published a number of articles reinterpreting and amending his theory. As he now presents it 'justice as fairness' is a spelling-out of the American consensus. It is not 'metaphysical' but 'political': as far as possible it avoids philosophical questions and 'tries to draw solely upon basic intuitive ideas that are embedded in the political institutions of a constitutional democratic regime and the public traditions of their interpretation' (Rawls, 'Justice as Fairness: Political not Metaphysical', p. 225). In the current version it is more a theory of toleration than a theory of distributive justice.
A few jottings follow on the later versions of Rawls's theory.
It no longer looks like a theory of justice - not of distributive justice (perhaps Nozick has persuaded him: he never mentions Nozick). It is not a theory of the distribution of primary goods, but more a theory of the liberal freedoms. The 'difference principle' is now down-played.
A task Rawls neglects: to formulate arguments capable of moving people some distance from their current position - the task of bridging wide gaps.
Already in the Theory of Justice Rawls seemed to be assuming the American consensus. In the later articles Rawls does not seriously address people outside the modern liberal consensus. He spells out what liberalism means, he does not try to convert the non-liberal.
What if the consensus breaks down, and there is no longer a 'mainstream'?
'Justification is addressed to others who disagree with us, and therefore it must always proceed from some consensus, that is, from premises that we and others publicly recognize as true; or better, publicly recognize as acceptable to us for the purpose of establishing a working agreement on the fundamental questions of political justice'; 'Justice as Fairness: Political not Metaphysical', p. 229. It does not follow ('therefore') from the fact that we are addressing others who disagree that we must use premises that just about everyone accepts - the premises must be acceptable to the arguer and to the addressee of the argument. What is needed is a series of bilateral arguments (as in Plato's Socratic dialogues), rather than a 'public' argument that all citizens will accept. 'We try, so far as we can, to avoid disputed philosophical, as well as disputed moral and religious, questions' (ibid., p. 230). But it may not be possible to avoid all the controversies. I agree that we should avoid them as far as they can be avoided. The reciprocity argument does this (see Essay III in Kilcullen, Sincerity and Truth). But we have to be prepared to find that some controversial topics have to be tackled. It is true that all philosophical discussion follows the method of avoidance - of separating separable questions. But the relevant questions should all be faced.
'... the historical origin of this liberal supposition is the Reformation and its consequences. Until the Wars of Religion in the sixteenth and seventeenth centuries, the fair terms of social cooperation were narrowly drawn... Thus one of the historical roots of liberalism was the development of various doctrines urging religious toleration. One theme in justice as fairness is to recognize the social conditions that give rise to these doctrines as among the so-called subjective circumstances of justice and then to spell out the implications of the principle of toleration.'
(Society involves cooperation, but also conflict. Maybe society will still work even if members do not all subscribe to the same principles.)
Rawls's theory reinforces an existing consensus on toleration by exhibiting some of its implications, which can be assumed to be attractive to those who already subscribe. My argument (in Sincerity and Truth) tries to bridge a wider gap.
See Robert Nozick: Anarcy, State and Utopia
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