A Critique of Rawls's Arguments
for the Lexical Priority of Liberties
by John Davenport
Department of Philosophy
Davenport@fordham.edu
Revised, November 1996
In his Theory of Justice, [1]
John Rawls famously defended several "principles of justice" which,
working together, are supposed to express deontological implications of basic
intuitions about fairness in the social contract for a modern democratic
society. Among these results, one of the
most important is the absolute priority of individual equal liberty for
all, which is supposed to safeguard the idea that "each person possesses
an inviolability founded on justice that even the welfare of society as a whole
cannot override" (TJ, p.3).
Rawls views this priority rule as one of the most essential aspects of
theory, which differentiates it from utilitarian approaches. This "lexical" priority of liberty
to other considerations is meant to capture the illegitimacy of sacrificing any
individual's basic personal freedoms for collective gains. However, although this rationale of Rawls's
main priority principle is often run together with more basic inviolability of
the difference between persons in general, they are not the same. The latter corresponds to the general
`priority of the right to the good' principle which is distinctive of all
deontological moral theories, and which in Rawls's case is embodied in the
Original Position with its veil of ignorance as a contractarian procedural
standard for the legitimacy of basic political institutions. By contrast, Rawls's main priority rule is a deliverance
that will supposedly follow from the Original Position, just like the two
main principles (equal liberty and the difference principle). Moreover, this lexical priority of liberties
rule is a specifically liberalist result in Rawls's theory: it is part
of his deontological approach to social justice by (synthetic) implication, not
by definition. This distinction is
important, because it reminds us of the in-principle possibility of a
deontological theory of justice that does not include a protection for
individual liberties as strong as the one Rawls advocates. [2] In this paper, I will develop this
possibility (a) by critiquing Rawls's analysis of liberties and his case for
the lexical priority principle; (b) by arguing alternatively that for reasons
brought forward by Jürgen Habermas, deontologists ought to favor a weaker
priority rule for individual liberties against the state; and (c) by sketching
how such an alternative "conditional priority" of principle might be
formulated, taking into account the political effects of differences in the
legal scope of various liberties.
Given its central place in his
theory, it is not surprising that Rawls retains his commitment to the lexical priority
of liberties in Political Liberalism.
In that book's final chapter, he attempts to deepen the argument for the
lexical priority of liberties by grounding it more clearly in a `political
conception of the person.' I will argue,
however, that even if we start from Rawls's reformulated political conception
of justice based essentially on toleration among competing but reasonable
comprehensive worldviews, his account of the basic rights and his arguments
(both old and new) for their absolute priority involve serious
difficulties. These difficulties are
most clearly apparent in his lesser emphasis on the political liberties and in
his arguments concerning the worth of liberty.
Nor are these difficulties sufficiently addressed by including a
"fair-value of political liberties" clause in the first principle of
justice, by introducing the notion of a "fully adequate scheme of basic
liberties," and other modifications Rawls spells out in his lecture on The
Basic Liberties and Their Priority.
By contrasting the implications of Rawls's fair-value principle with
those of Habermas's deliberative-democratic approach to the public sphere, we
will see that Rawls's principle require comparatively little reform in civil
society for purposes such as the empowerment for the poor and the creation of a
more rational `public sphere.'
Furthermore, Rawls's new argument for the priority of liberties still
depends on the same assumptions about deviations in the worth of
liberties as the origin argument in a Theory of Justice. These assumptions are vulnerable to critiques
of the difference principle which show that is may not adequately control or
prevent expanding inequality in the worth of liberties as the scope of basic
liberties increases.
I. The Priority of
The role of such priority
principles, as Rawls explains in A Theory of Justice, is to serve as
"critical principles" that tell us how to weigh the two
principles and their parts. Thus the
main priority rule is "the absolute weight of liberty with respect to
social and economic advantages, as defined by the lexical order" (TJ,
p.63). In addition, Rawls also
maintained in A Theory of Justice that within the second principle, fair
equality of opportunity is lexically prior to the difference principle (TJ,
p.89, p.303). The serial or lexical
priority of the first principle to the second means that "we must satisfy
the first principle in the ordering before we can move on to the second" (TJ,
p.43). Generally speaking, in lexical ordering:
A
principle does not come into play until those previous to it are either fully
met or do not apply. A serial ordering
avoids, then, having to balance principles at all; those earlier in the ordering
have an absolute weight, so to speak, with respect to later ones, and hold
without exception (TJ, p.43).
In practice, what this means in
Rawls's scheme is liberties can only be limited based on other considerations
drawn from liberty, such as the need to preserve conditions conducive to
this or that liberty. Rawls explains how
this is to work in more detail when he discusses the adjustment of a complete
scheme of liberties.
What
is important at this stage is to recognize how crucial Rawls's priority rules
are to his entire enterprise in A Theory of Justice and subsequent
works. He states at the outset that in
trying to provide a more general and thorough version of the "theory of
the social contract," his aim is to "offer an alternative systematic
account of justice that is superior...to the dominant utilitarianism of the
tradition" (TJ, p.viii). In
Rawls's view, his priority principles are the distinguishing feature of
his contractarian theory. As opposed to
utilitarianism, Rawls's weighting principles give absolute precedence to
considerations of liberty.
This
`absolute priority of liberty' also has a systematic importance that runs
throughout Rawls's argument in A Theory of Justice, and which reappears
in his reformulated political conception of justice in later works. By being in serial or lexical order, the two
principles of justice imply the ordinal division of all other facets of the
theory to which they directly relate.
The "basic structure" of institutions to which the two
principles of justice apply is divided into two segments, one of which has
priority over the other (TJ, p.61).
Likewise, there are two "relevant social positions" from whose
perspective the principles of justice are to be justified for each person:
"that of equal citizenship and that defined by his place in the
distribution of income and wealth" (TJ, p.96).
Also
corresponding to the hierarchy in the principles of justice and in the primary
goods, is the "division of labor" (TJ, p.199) between the
constitutional stage and the legislative stage in the formation of just
institutions: the former focuses on specifying and adjusting the equal
liberties, while the provisions which realize the second principle for
socioeconomic distributive justice are settled in the legislative stage. [3] Hence Rawls says openly that "the
priority of the first principle of justice to the second is reflected in the
priority of the constitutional convention to the legislative stage" (TJ,
p.199). It is also the priority rulesCwhich
put the first principle before the second and fair equality of opportunity
before the difference principleCthat distinguish Rawls's complete
formulation of the principles of justice from his "general
conception" of justice. Without the
priority rules, Rawls's principles collapse into the single general principle
that "all social primary goods...are to be distributed equally unless an
unequal distribution of any or all of these goods is to the advantage of the
least favored" (TJ, p.303).
The
lexical priority of liberty also implies a basic hierarchical distinction among
the primary goods which are to provide the accepted bases for expectations (TJ,
p.62, 93). The primary goods are divided
into three broad categories with a priority corresponding to the principle of
justice that governs them. Rights and
liberties governed by the first principle take precedence over access to powers
and opportunities, which are governed by the fair equality of opportunity rule
in the second principle, and these are in turn prior to income and wealth,
which are governed by the difference principle.
As we will see, a similar but more complex relation now exists between
the categories of primary goods and the serially arranged principles in Rawls's
revised theory.
This
has the further implication that we must think of liberties first as purely
formal freedoms and duties before considering the two groups of socioeconomic
primary goods governed by the two parts of the second principle. The liberties enshrined in constitutional law
are to be thought of as distinct from resources, such as positions of
authority in major organizations, education and training, and economic
advantages. Thus in discussing the
concept of liberty and the application of the first principle to the basic structure,
Rawls makes a famous distinction between "liberty" and the
"worth of liberty." While
liberties themselves are legal permissions, their worth consists in the
value they have when one can actually exercise them. The worth of liberty is therefore dependent
to a large extent on all the socioeconomic primary goods that allow people to
make substantial use of rights and permissions given by law:
..the
two‑part basic structure allows a reconciliation of liberty and
equality. Thus liberty and its worth are
to be distinguished as follows: liberty is represented by the complete system
of liberties of equal citizenship, while the worth of liberty to persons and
groups is proportional to their capacity to advance within the framework the
system defines (TJ, p.204)
Equal liberties in the sense of
equal legal permissions and responsibilities, then, does not require equal worth
of liberties for all: rather, citizens's abilities to make use of their legal
freedoms and the values their liberties have for them will depend on factors
regulated by the second principle of justice.
Corresponding to the lexical priority of the first principle over the
second, then, is the priority of formal liberties to the worth of liberties. In these interrelated ways, the priority of
liberty rule provides the basic paradigm for the entire theory, making possible
the structural correspondence between different aspects of Rawls's analysis.
The
`absolute priority of liberty,' then, is not just a minor component in Rawls's
appraoch: it establishes the distinctively liberalist direction of the
entire theory, for example by implying the necessity of constitutions which
strictly limit the power of popular democratic deliberation to influence the
scope of prevailing rights and liberties in a just society. Thus it is not surprising that Rawls
continues to maintain his priority principle in his Political Liberalism,
despite the criticisms it has drawn.
Surrendering his formulation of the priority rules would mean radically
rethinking his liberal contractarian strategy for opposing utilitarianismCa
step Rawls has not been prepared to take.
Accordingly, in Political Liberalism, Rawls has substantially
revised and elaborated his grounds for the basic rights, his account of how
they are to be balanced with one another, and his approach to the political
liberties, in the overall hope of preserving his case for the absolute priority
of these basic liberties.
II. The Priority of Liberties Among the Primary Goods
At
the beginning of his new account, Rawls notes that now "the basic
liberties and their priority rest on a conception of the person that would be
recognized as liberal" (BL, p.4).
This conception of the person itself evolves, as we have seen, from the
notion of social cooperation that is central to Rawls's "political"
conception of justice (JF, p.195-197).
When persons are viewed as `full social cooperators' in Rawls's sense,
..we
are attributing to them two powers of moral personality. These two powers are the capacity for a sense
of right and justice (the capacity to honor fair terms of cooperation and thus
to be reasonable), and the capacity for a conception of the good (and thus to
be rational) (BL, p.16).
These two moral powers correspond
to the elements of "the Reasonable" and "the Rational" in
social cooperation (BL, p.14); they are necessary because a person must
be able to be moved from a reciprocal acknowledgement of the fairness of terms
for cooperation, and must also be capable of being "benefitted." The latter requires that they have a sense of
their own rational advantage, which must be based on interests defined by their
conception of the good.
In
other places, Rawls explains these two moral powers of personality as
"highest order interests" and adds a third interest that ranks below
them but remains significant:
Thus
in formulating a conception of justice for the basic structure of society, we
start by viewing each person as a moral person moved by two highest-order
interests, namely, the interests to realize and to exercise the two powers of
moral personality. These two powers are
the capacity for a sense of right and justice...and the capacity to decide
upon, to revise and rationally to pursue a conception of the good. Persons also have a higher-order (as
opposed to a highest-order) interest in advancing their determinate conceptions
of the good (defined by certain specific final ends and aspirations) that they
have at any given time (SU, p.164-5; emphasis added).
The distinction between the second
and third interests has created some confusion. [4] However, I think all Rawls means by this
distinction is the difference between the interest in the overall capacity
to have and revise a conception of the good itself, versus the interest in
achieving the ends and excellences mandated by a specific conception of the
good. [5] Hence when Rawls talks about
"realizing" and "exercising" the two moral powers, he means
that citizens have very strong interests in the conditions necessary for the
development of the generic capacities themselves and necessary for using them
(for example, in changing one's conception of the good and altering one's
lifestyle accordingly). Realizing and
exercising one's capacity for a conception of the good strictly means acquiring
and changing such a conceptionCnot pursing the specific ends and
loyalties mandated therein. Interests in
the latter are derivative from the exercise of one's capacity for a
conception of the good, and hence the interest in realizing one's specific ends
is only a "higher" interest, rather than
"highest-order." This may seem
like a fine distinction, but the hierarchy in which the three
"essential" interests (as we might call them for convenience) are
arranged become extremely important in relation to the absolute priority of
liberties.
In
Rawls's revised account, the conception of persons in terms of their moral
powers is also closely linked to the primary goods. As Rawls explains in his paper on Social
Unity and the Primary Goods, the five categories of primary goods,
beginning with a list of "basic liberties," are determined by
"the general circumstances and requirements of social life" when
these are understood "in light of a conception of the person determined in
advance" (SU, p.167). On the
basis of the moral powers and essential interests of the person defined in this
conception, Rawls claims to pick out not only which liberties should be on the
list of basic liberties, [6]
but also the complete list of the primary goods (of which the list of basic
liberties is a part): [7]
1.The basic liberties (freedom of thought and
liberty of conscience and so on [8]):
these liberties are the background institutional conditions necessary for the
development and the full and informed exercise of the two moral powers...;
these liberties are also indispensable for the protection of a wide range of
determinate conceptions of the good (within the limits of justice).
2.Freedom of movement and free choice of
occupation against a background of diverse opportunities: these opportunities
allow the pursuit of diverse final ends and give effect to a decision to revise
and change them, if we so desire.
3.Powers and prerogatives of offices and
positions of responsibility: these give scope to various self-governing and
social capacities of the self.
4.Income and wealth, understood broadly as
all-purpose means (having an exchange value): income and wealth are needed to
achieve directly or indirectly a wide range of ends, whatever they happen to
be.
5.The social bases of self-respect: these bases
are those aspects of basic institutions normally essential if citizens are to
have a lively sense of their own worth as persons and to be able to develop and
exercise their moral powers and advance their aims with self-confidence.
When
we look closely at these different kinds of primary goods, it becomes apparent
that each category is related to different combinations of the three
essential interests of persons. As Rawls
says, these interests give rise to "three kinds of considerations":
These
are considerations relating to the development and the full and informed
exercise of the two moral powers...and finally, considerations relating to a
person's determinate conception of the good (BL,p.24).
The basic liberties are necessary
for (a) the sense of justice; (b) the conception of the good; and (c) for many
different determinate kinds of goods or ideals themselves. Thus in his extended argument for freedom of
conscience as a basic liberty, Rawls first begins with type (c)
considerations. He argues that the
parties must take into account that almost all conceptions of the good (any of
which could be theirs) will involve "religious, philosophical, and moral
views of our relation to the world," which their adherents would need to
be free to practice (BL, p.25).
This argument involves not just the capacity to form a conception of the
good, but some information about the contents of different determinate
conceptions. Thus it is also an argument
based on determinate interests that persons with such conceptions of the good
would have. This is one kind of argument
for equal liberty of conscience, but in his revised theory, [9]
Rawls now adds substantial new arguments that the liberty of conscience and the
liberty of association are necessary for the development of conception of the
good as an end in itself and for its exercise as a means to our good (BL, p.28-29). Finally, he adds three powerful arguments for
the liberty of conscience as a necessary for acquiring a sense of justice (BL,
p.31-35). At this point we need not
review these arguments; we must only note that in Rawls's view, all three
types of considerations underpin the list of basic liberties and their equal
juridification for all.
The
freedoms in the second category of primary goods are also connected directly to
the capacity to form and revise a conception of the good. In addition, they are connected indirectly to
the other highest order interests, since "freedom of movement and free
choice of occupation" together with the rule of law are considered
necessary for guaranteeing the other basic liberties (BL, p.50). [10] The background of "diverse
opportunities" is a social condition required for most determinate
conceptions of the good. Hence again in
this category, all three kinds of considerations are relevant.
The
third categoryC"powers and prerogatives of
offices"Cis only related to the interest in
exercising a conception of the good, and to the interest in realizing one's
determinate ends. And the fourth
categoryC"income
and wealth"Cis only related to the single
higher-order interest in the achievement of one's determinate ends. Thus, ignoring for the moment complexities
involved in Rawls's notion of self-respect (the fifth category), we have the
following breakdown:
Categories of Considerations
related to the Governing
Primary Goods moral conception of the person Principles
1. Basic liberties (a), (b) & (c) 1st
principle
2. Free movement and diverse (a), (b)
& (c) 1st principle
opportunities of occupation
3. Powers of offices/positions (b)
& (c) 2nd prin. part B
4. Income and wealth (c) 2nd prin. part A
This breakdown is significant
because it reveals how in his revised theory of justice, Rawls has maintained,
within the primary goods, a hierarchy appropriate to his priority rules. Whereas the basic liberties are necessary for
the highest order interests and many of the higher-order
interests given in different determinate conceptions of the good, income and
wealth are only related to the higher-order interest in achieving one's
determinate ends. In other words, the
only interest on which the need for income and wealth is based is already
hierarchically inferior, in the conception of the person, to the interests on
which the basic liberties are based.
This anticipates the priority of liberty to the difference
principle. Furthermore, the need for
powers and prerogatives of offices has a broader basis in the essential
interests of the person than does the need for income and wealth: hence the
priority of fair equality of opportunity to the difference principle. As Rawls says,
The
highest-order interests in developing and exercising the two moral powers,
along with the normal conditions of human social life, not only single out the
primary goods but also specify their relative importance. Thus, the priority of the first principle
over the second, and the priority of part (b) of the second principle over part
(a), reflects the pre-eminence of and relation between [11]
the highest-order interests in the conception of the person (SU, p.166).
Rawls thus retains, on a new basis
(i.e. the conception of the person and their essential interests), the systematic
correspondence between the categories of primary goods and the serial ordering
of the principles which we first saw in A Theory of Justice. This shows how important it is for Rawls to
give a lower standing to the merely "higher-order" interest in
achieving one's determinate ends. In
this assumption a predisposition for Rawls's priority principles is created.
III. The Priority Principle and the Adjustment of
Liberties in a `Fully Adequate Scheme'
In
A Theory of Justice, Rawls explained the meaning of his main priority
principle as follows: "When lexical order holds, a basic liberty can be
limited only for the sake of liberty itself" (TJ, p.204). The priority rule, in other words, limits the
kinds of considerations involved in adjusting the specific extensions of each
of the basic liberties, so that they can fit together in a coherent
scheme. As Rawls says in A Theory of
Justice, we must realize that "the basic liberties must be assessed as
a whole, as one system" when adjusting them to one another (TJ,
p.203). An interpretation of how this
adjustment should take place as the liberties are specified determines the practical
meaning of the priority principle.
Since that principle requires lexical priority for liberties, it must
include a rationale that explains how the first principle of justice can be fully
satisfied, or otherwise the second principle of justice would never even be
activated. [12] However, Rawls's understanding of the
rational procedure by which the mutual adjustment and balancing of liberties
should occur as required by the first principle has now changed in several
critical respects.
In
A Theory of Justice, Rawls's first principle calls for "the most
extensive total system of equal basic liberties compatible with a similar
system of liberty for all" (TJ, p.302Cfinal
formulation). This involves two
intuitive notions: first, that in legal form, a given liberty is more or less
"extensive" and second, that as they are made more extensive,
liberties will conflict and thus provide a basis for limiting one another: thus
"liberty is governed by the necessary conditions for liberty itself"
(TJ, p.215).
The
"extension" of a liberty must be distinguished from its equality for
all. Rawls seems to think of extension as a measure of how broad a liberty is
in application. We might think of it as
a measure of how many legal protections potentially guaranteed under a liberty
are actually in force. Thus, for example,
freedom of the press is more extensive if it includes the right to completely
unregulated television broadcasting; it is less extensive if this right is not
legally established. [13] Equality of a liberty, on the other
hand, is defined in terms of extension: a liberty applies equally to all if it
has the same extension or range of application for every citizen. Hence there are two distinct ways to
contravene the first principle: "The basic liberties may either be less
extensive though still equal, or they may be unequal" (TJ,
p.244). Lastly, this inequality in which
a given liberty has different scopes for different citizens is not to be
confused with `inequality in status' between different liberties
themselves: "some of the equal liberties may be more extensive than
others, assuming their extensions can be compared" (TJ, p.204).
Rawls
implies at some points in A Theory of Justice that certain liberties
have what could be called natural maximum extensions. For example, Rawls suggests that the
extensiveness of the liberty of political participation should be defined
relative to "bare majority rule."
Hence "Whenever the constitution limits the scope and authority of
majorities" by checks, balances, a bill of rights, and so on, "equal
political liberties is less extensive" (TJ, p.224). This way of thinking about the extensiveness
of a liberty, however, seems hard to reconcile with the actual progression of
judicial interpretation, in which more and more sub-principles and concrete
protections may be specified for new circumstances under the principle
of a given liberty. Thus, the freedom of
the press, legislated long before the transistor, was extended when it was
found to apply (within limits) to radio and television broadcasts. This model of specificatory application of
principles suggests that from one point of view, the potential extension of a
liberty may be limited only by the range of possible circumstances in which it
could apply.
In
this light, there is little reason to think that the scope of each liberty,
considered separately, reaches any inherent limit in some threshold relative to
which its extension can be decided in advance without judicial or
democratic deliberation. Liberties can
only generate reasons to limit other liberties (and themselves) because some of
their applications conflict with conditions necessary for other applications
they might have, making impossible some combinations of different liberties,
each with particular legal extensions.
On these sorts of grounds, and to meet requirements for the stability of
the whole system of liberties (TJ, p.218), we are justified in adjusting
the specific liberties "so as to yield the best total system of equal
liberties" (TJ, p.203). In A
Theory of Justice, where the maximum overall sum of extensions in liberties
is prescribed as the ideal, Rawls conceives the limitations that liberties
place on one another's extensions as marginal exchanges in a maximization
problem. [14] Thus, taking the liberty of equal political
participation, for example, Rawls says
..we
should narrow or widen its extent up to the point where the danger to liberty
from the marginal loss in control over those holding political power just
balances the security of liberty gained by the greater use of constitutional
devices...The priority of liberty does not exclude marginal exchanges within
the system of freedom (TJ, p.230).
But
in The Basic Liberties and Their Priority, in response to objections
from Hart and others, Rawls abandons this earlier view: instead, "the best
scheme of liberties is not said to be the most extensive" in any mereological
sense (BL, p.46). [15] The first principle is changed to require
"a fully adequate scheme of equal basic liberties" (BL, p.5),
and Rawls must then define what this "full adequacy" condition means
and how it can be satisfied. This
account involves three new concepts: the "central range" of a
liberty; the "significance" of a liberty; and the two
"fundamental cases" with respect to which significance is defined.
In
adjusting liberties to one another, Rawls now says that the priority of liberty
requires that we "preserve intact the central range of application of each
basic liberty" (BL, p.10).
Liberties, in other words, are thought of as having a core set of
applications protected by the priority of liberty. For example, Rawls suggests that the central
range of the liberty of conscience includes at least "the freedom and
integrity of the internal life of religious associations and the liberty of
persons to determine their religious affiliations" (BL,
p.56-8). To take other cases, the
"central range of the freedom of political speech" must include full
protection of subversive doctrines from charges of "seditious libel"
(BL, p.57), and the right to own capital is not in the central
range of the "liberties of the person" (BL, p.12). Rawls does not make these decisions
intuitively or arbitrarily, but rather from considering which specific rights
are "necessary for the development and exercise of the moral powers"
to which a given liberty is related (BL, p.12). [16] In other words, the applications included in
a liberty's central range (or at least its essential elements [17])
are determined along with the decision to count that liberty as basic in the
first place, since both are justified directly from requirements for the
"adequate development and full exercise of the two moral powers of
citizens" (BL, p.11).
Thus
the maintenance of specific legal rights that are essential to different basic
liberties is a necessary but not sufficient condition for having a fully
adequate scheme. Full adequacy requires,
in addition, that in further filling out the scheme of equal liberties,
different specific applications of liberty should be weighted relative to two
"fundamental cases." The two
"fundamental cases" are derived from applying the two highest-order
moral powers to their most comprehensive subjects: [18]
The
first of these cases is connected with the capacity for a sense of justice and
concerns the application of the principles of justice to the basic structure of
society and its social policies. The
political liberties and freedom of thought are discussed later under this
heading. The second fundamental case is
connected with the capacity for a conception of the good and concerns the
application of the principles of deliberative reason in guiding out conduct
over a complete life.
The significance of a
liberty is defined with respect to these fundamental cases as follows:
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 and effective exercise of the moral powers in
one (or both) of the two fundamental cases (BL, p.50).
This
gives Rawls a criterion to govern the specification and adjustment of liberties
into a coherent scheme at the constitutional stage. By rating specific extensions of general
liberties (i.e. specific legal rights) as more or less "significant"
in this sense (i.e. how essential they are to the exercise of the moral powers
in the two fundamental cases), Rawls provides a criterion for weighting these
claims and determining which should be adjusted to suit which in cases of
conflict. Further extensions of less
significant liberties may have to be given up "for the sake of the most
significant liberties" (BL, p.56).
Finally, Rawls argues that "basic liberties not only limit one
another, but are self-limiting" (BL, p.56). He can show this, at least, for basic
liberties in their equality.
Given the requirement that liberties apply equally to all, beyond a
point, further specific extensions of a given liberty, when granted to all, may
be self-contradictory. [20]
Full
adequacy, like significance, is defined in terms of the two fundamental cases
for Rawls. Rawls introduces the fundamental cases, as he says, because the
"fully adequate" extension of the liberties cannot just be that which
maximizes "the development and exercise of both moral powers"
unconditionally (BL, p.48). It is
important to realize that unlike the moral powers considered in abstraction,
the "fundamental cases" will vary somewhat from society to society,
since they are defined as the application of the moral powers to certain
comprehensive problems that will appear in somewhat different forms depending
on the history and traditions of a given society. [21] Thus when the first principle is understood
in terms of these fundamental cases, it calls for "the best, or at least a
fully adequate, scheme of basic liberties, given the circumstances of
society" (BL, p.46, my italics). This element of contextualization is apparent
again in Rawls's definition of full adequacy:
..the
criterion at the later stages is to specify and adjust the basic liberties so
as to allow the adequate development and full and informed exercise of both
moral powers in the social circumstances under which the two fundamental cases
arise in the well-ordered society in question. Such a scheme of liberties I shall call
"a fully adequate scheme" (BL, p.48, my italics).
Putting all these pieces together,
it would seem that the "fully adequate" clause in the first principle
of justice is satisfied when (a) the central range of each liberty (determined
from the moral powers taken noncontextually) is provided for without
tradeoffs between the components of these central ranges, and (b) beyond their
central ranges, liberties are further extended in accordance with the criterion
of significance, as it will vary in different societies. This is what Rawls seems to mean when he says
that the priority of liberty is premised on the assumption that "the basic
liberties can be made compatible with one another, at least within their
central ranges of application" (BL, p.11). In other words, extensions included in a
liberty's central range of application are not supposed to be subject to
negotiation in the `balancing' of the full scheme.
However,
in a later section, Rawls himself explains the implications of his new criteria
in slightly different terms. He
concludes his extended analysis of free political speech as follows:
I
have tried to illustrate how in the case of political speech, we try to
identify the more essential elements in the central range of application of
this basic liberty. We then proceed to
further extensions up to the point where a fully adequate vision for this
liberty is achieved, unless this liberty has already become self-limiting, or
conflicts with more significant extensions of other basic liberties (BL,
p.71-72).
This way of putting the matter is
somewhat confusing, since it distinguishes two parts of a liberty's
central range itself: the essential and non-essential segments. The components in the first are apparently
determined (as before) from the moral powers directly, and are not subject to
tradeoffs. Components in the second are
determined according to their `significance' relative to the fundamental cases
as the entire scheme of liberties is filled out and completed, and so it
appears that components in this `non-essential' segment of a liberty's central
range are negotiable. To paraphrase,
Rawls basically gives us a conception that distinguishes three segments
that jointly exhaust a liberty's scope, as follows:
A) Its essential extension, determined
from the necessary conditions for the exercise of the moral powers taken
noncontextually, and required to be fulfilled without tradeoffs between
liberties, in any just democracy.
B) Its preferred significant extensions
in a given society, weighted in "significance" according to how
essential such extensions are for the effective application of moral powers to
the problems of the basic structure and comprehensive conceptions of the good,
as those problems arise in the context of a given society's history,
traditions, and circumstances. These
extensions continue until (in serial order):
(1) they are overruled
by more significant extensions of other liberties.
(2) they limit
themselves under conditions of equal liberty.
(3) they provide sufficiently for
the use of the moral powers in the fundamental cases as they appear in a given
society (i.e. they include all extensions considered significant
relative to the fundamental cases).
C) Its non-basic further extensions (if
any), when these are compatible with essential and preferred extensions of
liberties, and based directly on the history, tradition, and political culture
of a particular society (such as the right to own capital as a non-basic
extension of the freedom and integrity of the person).
Specific rights falling within the
first two segments of a liberty's scope are considered part of the basic
liberty, and are protected by the priority of liberty rule under the first
principle of justice. Further components
in the third segment are considered non-basic liberties (or non-basic
extensions of the basic liberty) are not protected under the priority
rule. This also implies a stage-wise
distinction. As Rawls says, "all
legal rights and liberties other than the basic liberties as protected by the
various constitutional provisions...are to be specified at the legislative
stage" (BL, p.53). Only
extensions in the third segment of each liberty's range are left up to the
deliberative process of popular sovereignty.
Once
we have identified these three segments of a liberty's extension, the
nomenclature matters little. If we say
that segment (A) constitutes the entire central range of the liberty,
then fulfilling the central ranges of each liberty is a necessary but not sufficient
condition for the completion of a fully adequate scheme of basic
liberties. All of the specific
permissions and rights in the "fully adequate" vision for the liberty
must be counted as basic and protected by priority: both those in the central
range of the liberty, and those further extensions arrived at through tradeoffs
with further extensions of other liberties, weighted in terms of
significance. On the other hand, if we
like we can say that segment (A) constitutes the essential part of a
liberty's central range, and (B) the non-essential part of its central
range. But then we have to say that only
the essential components of each liberty's central range must be the same in
every democracy, and must be completely fulfilled without tradeoffs. The central range of a liberty will then have
an essential core that is fixed in advance by what is absolutely necessary for
the use of the two moral powers, non-contextually and without comparative
considerations from other liberties, and be determined the rest of the way by
the balancing of its further significant extensions with those of other
liberties according to their significance in the context of different
societies. To avoid any ambiguity, I
prefer "essential basic," "preferred basic," and
"non-basic" to designate these three segments.
The
definition of the second segment perhaps demands some clarification. Rawls offers no definition for a "fully
adequate vision" for a liberty except in terms of significance relative to
the fundamental cases. As I understand
Rawls's first principle, then, a liberty continues to be extended, unless its
further extensions are overruled by more significant extensions of other
liberties, or it limits itself, or it runs out of further extensions that
have significance relative to the fundamental cases. Rawls is less explicit about this last
possibility, but it is a necessary element of his scheme for an important
reason. If every legally conceivable
extension of a liberty has some significance, the theory would imply that any
further, non-basic extensions of liberties would be impossible because
inconsistent with components of the basic liberties protected under the
priority rule. This implication is
avoided precisely because we can think of these non-basic extensions in the
third segment of a liberty's scope (such as rights to own natural resources,
rights to own firearms, etc.) as simply having zero weight in the
technical sense of "significance."
In other words, non-basic liberties are not at all essential to the exercise
of the moral powers in the fundamental cases, nor are they necessary
institutional means thereto. [22] But, as long as they do not conflict with any
liberties already established in the fully adequate scheme, and do not
constitute further extensions of a liberty that has already limited itself,
these zero-significance extensions are at least possible at the legislative
stage.
This
analysis shows, however, that Rawls's notion of the fully adequate scheme of
basic liberties certainly does embody a notion of completeness. Pace Rawls's denials, his concept of full
adequacy implies a maximal ideal: the fully adequate scheme starts with the
essential extensions of every liberty, and its remainder is then filled in by
extensions of every liberty, until one by one, each liberty reaches its logical
limit, leaving only the most significant further extensions of various
liberties (which overrule others).
Finally, these extensions too either limit themselves, or are `completed'
in the sense that they include every related legal right that in current
knowledge promotes the exercise of the moral powers in the fundamental
cases. The "fully adequate
scheme" thus exhausts the compossible significant extensions of liberties,
in the most significance-optimal combination. In a word, the first principle now requires
the maximally significant compossible scheme of liberties relative to the
fundamental cases. [23] Rawls argues that his notion of the optimum
system of basic liberties is not a quantitative maximization, since
"acting from the best reasons, or from the balance of reasons defined by a
moral conception [such as "significance"], is not in general to
maximize anything" (BL, p.47 footnote 41). But this is deceptive: Rawls's revised first
principle is still calls for a maximization test on schemes of liberties in the
sense that it is supposed to serve as a decision-procedure, an algorithm
by which social contractors commit to decide the answer to a particular
fundamental problem in advance of the phronetic risks of democratic
deliberation. Thus, although it is
defined relative to Rawls's fundamental cases, and therefore does not exhaust
all possible extensions of liberties (since some will be `non-significant'),
Rawls's conception of how liberties are to be filled out and balanced still
attempts to maximize formal liberties Cno longer in the quantitative
sense ("most extensive"), but in the sense of a logical
maximality of significance relative to a
predetermined standard that is supposed to be sufficient to decide the
problem without including deliberation essentially in the procedure. We contract to limit significant extensions
of liberties only for the sake of more significant extensions of other liberties,
or because of their self-limitation, but always by reference to the formal
significance of liberties, and not their practical worth. In A Theory of Justice, Rawls had
maintained that, relative to the complete system of liberties, it is "by
and large true that a greater liberty is preferable" (TJ, p.203),
and I see no grounds for saying that his new characterization of a "fully
adequate" scheme of liberties has any fundamentally different
implications.
This
conclusion, in turn, undermines Rawls's contention that in his scheme, "no
priority is assigned to liberty as such" (BL, p.5). Rawls makes this point in attempt to
distinguish his first principle from a view typical of libertarian
theories: namely, that "the exercise of something called `liberty' has a
pre-eminent value and is the main if not the sole end of political and social
justice" (BL, p.5). Rawls
argues that his `absolute priority of liberties' principle does not have this
ultraliberalist implication, because it is proposed only "relative to a
given enumeration of alternatives from which the parties are to select"
and hence only applies to a specific list of liberties (BL,
p.7-8). He adds:
..to
establish the priority of liberty it is not necessary to show that the
conception of the person, combined with various other aspects of the original
position, suffices of itself to derive a satisfactory list of liberties and the
principles of justice which assign them priority (BL, p.8).
Rawls's point here, although
somewhat opaque, is just that the priority of liberty is not established from
the Original Position and the moral conception of the person by themselves. Rather, specific claims must be introduced
into the Original Position (e.g. the traditional liberties Rawls considers);
and then and only then can the parties decide which set of principles has a
better basis in the conception of the person.
This point is analogous to Habermas's reminder that his discourse principle is `formally empty' in the sense that it only produces conclusions when claims stemming from values and ethical conceptions of the Good are brought into normative discourse from multiple evaluative traditios.