Hart (1975) objects to these notions of lesser and greater liberty - for this suggests that no other values, such as force or extent, are involved. So the above debating rule secures not a 'greater' liberty, but "..a liberty to do something which is more valuable for any rational person than the activities forbidden by the rules." Yet Rawls talks as if his basic liberties are self-contained, and require no criterion of the value of different basic liberties where conflicts arise between them. Hart insists that many cases require one to consider the relative value, as well as amount of freedom at stake. Rawls would argue that the 'conflict' between the two freedoms is to be solved by an appeal to the rational choice of the "representative equal citizen" in the original position. Here, this person would recognise the need for restrictions if he/she wanted to put across their view. Can this be done without appealing to utilitarian considerations, or human rights? Hart thinks not.
Hart points out that Rawls revises his conception of liberty to mean "basic liberties", legally recognised and protected from interference. He argues that there are "important forms of liberty...which apparently do not fall within any of the roughly described basic liberties." This could include the freedom to use alcohol and drugs, (which do not appear to fall under liberty of conscience or of the person). It would indeed be odd if the principle of justice was silent about their restriction.
His point is that there is often no 'best worst' position which a citizen would rationally prefer, nor that this would secure a greater liberty. A good example is the freedom to movement as opposed to the liberty of private ownership of land (which Rawls includes in his basic liberties). Some people may prefer freedom of movement to a trespassing law - others, say, landowners, may try to limit this. Hart thinks that only by appealing to a common good - ie, the protection of crops - could a clear decision be reached, but of course this counts as the limitation of liberty for socio-economic reasons, which Rawls forbids in his special conception.
Hart asserts that a citizen in the original position would consider both the advantages of him/her possessing these basic liberties, and the disadvantages to him/her from others exercising these liberties. So in some cases, a rational person would prefer restrictions of some liberty, but in others it "..must depend on one's temperament and desires". since Rawls had denied the representative citizen such knowledge, it is difficult to see how that person can make a rational decision of self-interest. In fact, Rawls does not clearly state what the conditions that bring about his special conception of justice are, perhaps because the fulfilment of the basic needs of humans can vary according to different societies. Hart notes that, if this applied to very wealthy societies, the significant inequalities of wealth and power actually prevent the poor from exercising their basic liberties. In these circumstances it would surely be just and rational for the poverty stricken to support an authoritarian government which would advance their material conditions.
Hart argues that a surrender of liberties for an increase in material gain, forbidden by Rawls, is not necessarily permanent. So either there can be no priority rule, in which the worst position is for a wealthy citizen who wishes to enact his/her lost liberties; or there can be a priority rule (because society is just prosperous enough to enable it), where the poor would happily sacrifice certain liberties for greater wealth. Hart maintains that, even when the veil of ignorance is lifted, no determinate answer will be forthcoming. He concedes that there may be an exception for the liberty of religious conviction, in which any individual who understood what is it to have and practice this faith, would choose it over material wealth - even a poverty-stricken citizen. I would say that this is a difficult line to take - it seems to me that once we talk of religious conviction having a special status, we have to say in what way it does so. One can scarcely appeal to observable 'truths', so presumably it would come down to fervent belief and 'enlightenment'. Now, I may have a genuine fervour which is comparable to religious fervour, for something such as masochism. Or it may be the spiritual practice of Tantra, which certainly offers its followers enlightenment, but also revolves around sexuality. I doubt that Rawls or Hart would elevate these two cases to the special level of religion.
In fact, is it ever permissible to restrict liberty - even for the sake of other liberty? Rawls would try to use this principle to justify conscription into the army, where the defence of the homeland would genuinely defend free institutions, either at home or abroad. Here, the temporary surrender of liberty by being conscripted, is permissible in order to prevent the ultimate surrender of liberty at the hands of our rivals. This would be unacceptable to anarchists, who would reject such state coercion in that all compulsory loss of liberty is denigrating and morally impermissible.
Overall, Hart argues that deliberators in the original position have no obvious grounds for preferring liberty to economic well being. Rawls responds to this in his Tanner Lectures (1982) by assigning two 'moral powers' to citizens. One is the capacity to be reasonable - to have a sense of justice and honour fair terms of social co-operation. The other is to have a conception of the good, and the ability to rationally pursue the notion of a 'good' life. He notes that the parties in the original position would be aware of their different conceptions of the good - but of course are ignorant of the particulars. Since they are unaware of the dominance of, for example, their religious views, they would not allow liberty to be permitted to a rival religion if it turned out to be dominant. They are not, in other words, willing to take the gamble of suffering from being in the minority. This ties in with liberty of conscience, including the liberty to make mistakes - which is needed in order for social conditions to arise which enable us to rationally form a concept of and pursue the good.
These moral powers are, for Rawls, the deciding factor, which mean that those in the original position would not choose socio-economic goods over basic liberties - they come to realise 'higher order interests'.
Daniels (1975) point out incompatibilities in Rawls' two principles, "if inequalities permitted by the Second Principle are very small". He notes that, for example, Rawls' priority of liberty allows both the wealthy and the poor to possess universal suffrage and identical voting rights, yet socio-economic inequalities allowed in the difference principle mean that in reality there will be limitations. Clearly the wealthy can influence the political outcome more effectively than the poor, with better abilities to influence public opinion and elected officials. Although possessing equal liberty to participate in the political process, the socio-economic differences means the worst off are unable to effectively exercise this liberty. Daniels in fact points to combined effects - so if I am in an advantageous position, where I can influence the political process in a local election, I may be able to gain greater influence over the school of my child, and its organisation. If I also owned a newspaper, the combined effects would be to give me much more freedom of expression and influence than those in a worse situation.
Rawls tries to answer this by insisting that the equality of liberty itself remains intact - that these socio-economic factors affect only inequalities in the 'worth' of liberty (ie, the ability to exercise it), not liberty itself. Rawls distinguishes between basic liberties, allowing individuals to act in a particular manner, and their 'worth' which is affected by socio-economic conditions, rendering the worth of a given liberty less useful to the poor than the rich. Now Rawls' Second Principle, in allowing socio-economic inequalities, gives unequal value to the liberties of citizens. Yet it also maximises such 'primary', socio-economic goods to the worst off, so gives their liberties greater value than they would otherwise have. Also, although the liberty principle talks of equal basic liberties rather than equal worth of liberties, this does not apply to political liberties, whose worth must be roughly equal. This enables everyone to partake in political engagement.
Unfortunately this does not appear to compensate for unequal worth of liberty. For example, if I, as the owner of the above, successful newspaper, provide benefits for my employees which raised their living standards, these would be seen by Rawls as "fair inequalities", even though my own economic standing far outstrips theirs, and even though the worth of liberty to me is far greater than to them. There does seem to be quite an effect upon liberty from economic inequalities, rendering it somewhat pointless to talk of possessing a liberty, when in real terms we are unable to employ it.
Daniels says that "choosing equal worth of liberty is just as rational...as choosing equal basic liberty". It does seem that Rawls makes a mistake in trying to distinguish between basic and non-basic liberties, and they seem to founder in cases of significant inequalities of wealth and power. Given this, why should I choose to uphold values which I believe to be fundamentally wrong, ie, religious convictions that I could not possibly reconcile with the rival, dominant religion?
Hart pointed out the difficulty in deciding between basic liberties and socio-economic goods; indeed, between basic liberties and non-basic ones. It is extremely difficult to appeal to an overall maximisation of liberty as the deciding factor. Rawls tried to appeal to the moral powers in determining the value of conflicting liberties - that the liberties should contribute to a furtherance of such powers. This means other liberties can be overridden if so doing will help achieve this development. Yet it is still far from clear why it would be any less reasonable and rational for the poor to choose wealth and power over liberty.
Moreover, Daniels showed the flaws in trying to separate civil and economic liberties. Rawls is not very clear on the issue of property, as Hart notes - but surely in some cases property can be treated as both an economic and a civil liberty? Is it to be regulated by the difference principle, then, or given priority? Daniels point out that, even if inequalities derived from private ownership of production were compatible with the Second Principle, "..many inequalities which might have been justified by the Second Principle taken in isolation, will probably fail the test of compatibility with the First Principle." We cannot, then, truly isolate economic factors from liberty, and in the original position we need both equal basic liberty and the ability to exercise it.
Rawls has a truly noble idea in mind - the elimination of injustice and guiding change towards a fair basic structure. Pogge (1988) argues that his aim was not to mitigate unjust institutions by redistributing wealth, but of actually changing the very institutions that lead to inequalities in the first place. This is admirable, but he simply fails to take into account significant inequalities of wealth and power, and the liberty principle suffers because of it.
BIBLIOGRAPHY.
N.Daniels - "Equal liberty and unequal worth of liberty" in Reading Rawls (ed)
N.Daniels.(1975)
H.L.A.Hart - "Rawls on liberty and priority" in Reading Rawls (ed)N.Daniels.(1975)
T.Pogge - "Rawls and Global Justice" in Canadian Journal of Philosophy,
vol.18, no.1, March 1988
J.Rawls - A Theory of Justice ,(1971), Cambridge, Mass. "The basic liberties and their
priority" in The Tanner Lectures on Human Values (ed) S.M.McMurrin, (1982)
Salt Lake City:University of Utah Press.
