The argument concerning the priority of liberty in A Theory of Justice is presented in a few places. In section 39 it was "defined" and in section 46 it was related to other cases of priority. In presenting the reasons for the principles of justice in section 26 the account of liberty that was presented was also one in which the swopping of lesser for greater liberty was shown not to be a reasonable outcome for the acceptance of contracting parties within the original position. In section 82 as Rawls moves towards the conclusion of the whole book he brings together and summarises the arguments for the priority of liberty in a well-ordered society as seen from the point of view of the original position. In this posting I am going to concentrate on how the arguments given in the latter do more than just demonstrate the grounds for the priority of liberty. The arguments also show that the suggestion made by Parfit that Rawls' account of the deliberative rationality that Rawls is articulating is desire-based and shows, to the contrary, that the recognition of interests by Rawls is one that is intrinsically normatively grounded.
The argument of section 82 opens by referring to the way the conception of the well-ordered society is a notion that requires regulation by a public conception of justice. If there is a well-ordered society then the members of it all view each other as free and equal moral persons. Now, in describing what is meant in determining each other as free and equal moral persons, Rawls refers to "the fundamental aims and interests" in the name of which each of them thinks it possible to make legitimate claims on each other. The way to understand these "aims and interests" is central to replying to the suggestion of Parfit that Rawls' moral psychology is essentially desire-based and to show in detail why this is not the case. One of the ways it becomes obvious that the account of "aims and interests" Rawls is drawing on here is not a desire-based moral psychology is that he explicitly and openly says that a right to equal respect and consideration is central to determining the principles by which the basic structure of their society is to be governed. Alongside this point about a right to equal respect is the sense of justice that would normally govern the conduct of all the members of the well-ordered society.
The original position itself is specified as governed by the constraints of right as these constraints determine the form an acceptable set of principles can take. Amongst the constraints of right that would thereby define the form of a well-ordered society is that the conception of justice that governed it should be a publicly justifiable one. It is within the constraint of such publicity that we comprehend the notion of the members of it as free and equal moral persons as this way of viewing the person (what we can generally term a "Kantian" conception of persons) are ones to whom principles of justice are publicly accessible and justifiable. The original position embodied principles of reciprocity and equality as further elements of the constraints of right and it is in the context of recognition of these principles that Rawls indicates that a basic rationale for the priority of liberty is that fundamental aims and interests of all persons are protected by it. So a first sense given to the understanding of these "aims and interests" is in terms of equal reciprocal relations between persons.
Now the way that these "aims and interests" are recognised tells one a great deal about how they are understood. The first "interest" Rawls here mentions is that which people have in religion. Religious interests are recognised in terms of equal liberty of conscience for all contracting parties. The general nature of the religious interest is recognised only since no one would be aware, under the veil of ignorance, of possessing any particular religious belief. An "aim" of persons is clearly to defend any given religious belief that they may possess since they, as particular persons, will hold to some definite religion. The "strains of commitment" of the original position will be such that contracting parties will see the point of giving precedence to liberty.
Having given first a "religious" interest and specifying the concomitant "aim" that goes with it Rawls secondly looks at how "higher-order interests" in general shape and regulate the social institutions that will themselves shape other "interests". The recognition of the contracting parties as "free" persons is reflected in the understanding that they each have of an "interest" in having the ability to adopt, revise and alter, their conceptions of the good. This is another basis for recognition of the priority of liberty. The basic structure thus should be governed by the account of autonomy and objectivity that Rawls earlier provided.
The arrival at the principles of justice as a result of deliberation within the original position occurs by means not just of the constraints of right that govern the position but also by means of the way that persons within this position are moved by a "certain hierarchy of interests". The highest-order interests and fundamental aims of the parties are reflected in the priority given to liberty and the means that enable them to "advance their other desires and ends" is explicitly stated to have a subordinate place. Not only is this so, but, as we shall see, in the sense meant by desire-based theories of reasons, Rawls does not recognise "desires" here as having any real role at all. There are, for example, "interests" in liberty which have a real objective in terms of establishing basic liberties but this is not the kind of "interest" that is invoked by desire-based theories of deliberative rationality. The kind of "interest" involved in liberty is, as Rawls puts it, a "higher-order" one as it regulates all the ways that "interests" can be expressed within a well-ordered society.
This point is supplemented by the argument concerning the kinds of attitudes and feelings that would be generated within a well-ordered society, the argument that included the previous account of envy. The point of the account of envy was to respond to the kind of objection to the well-ordered society that suggests that within it there could be a form of competitive/comparative relation between persons that would be socially destructive. In other words, a more equal society might make people more obsessed with their relative share of social wealth. Against this view Rawls wishes to show that the well-ordered society would lead, rather, to people taking less interest in relative positions. The presence of envy would have less sway, at least in a destructive sense. This is not due to a lack of concern with status since recognition of self-respect as a basic primary good ensures instead that relating to others as worthy of respect is something central within the society. But the basis for self-respect is grounded not on relative share of income but instead on the public recognition of the equality of rights. Since there is such equality of rights there is no incentive to politically seek other ways of having status understood as central to worth that is non-public in form.
One of the reasons why this argument is thought to hold by Rawls is due to the symmetrical reason why no one would wish to be publicly inferior as that would be damaging to self-esteem. Similarly attempting to reach a non-public form of self-esteem has the difficulty that it indicates a view of others as inferior to oneself, a conception that has no public endorsement and would rather lead to a general aversion to the one wishing to find expression for their view. Public attitudes of mutual respect have an essential place in maintaining a political balance between persons and in assuring everyone of their own worth and the acceptance of equal liberties is a central way in which this is expressed.
The distribution of material means in the well-ordered society is taken care of by principles of pure procedural justice and the good of social union is maintained by supporting the primary good of self-respect. The application of the difference principle allows for what was previously determined as excusable envy and this helps to show the grounds for the priority of liberty. The public knowledge of the facts about each other reflected in the general recognition of the Kantian conception of the person is both based in the culture of the well-ordered society and furthered by its institutional arrangements. The reasoning that led to the principles of justice and that can support it is of a form that is publicly available.
Notable in the whole argument of section 82 is that the interests that are recognised as decisive in it are not ones that are reflective of "desires" in the sense indicated in "desire-based" views of reasons. So, for example, they are not desires simply taken as given or as reflective of mere natural facts. They are rather civilly understood desires and desires that fundamentally reflect interests in recognition of aspects of personhood that are enshrined in the Kantian conception of the person. So not only does section 82 summarise and complete the arguments for the priority of liberty but it confirms that Rawls' general moral psychology is not a desire-based one.
Showing posts with label equal liberty. Show all posts
Showing posts with label equal liberty. Show all posts
Saturday, 9 June 2012
Friday, 5 August 2011
Rawls on the Rule of Law and the Priority of Liberty
Sections 38 and 39 of Chapter IV of A Theory of Justice focus, after the previous discussion of the principle of participation, on the relationship between law and liberty. Section 38 discusses the notion of the rule of law, drawing out from the idea the basis under which rights are protected by law. Section 39 then follows up with a discussion of how the account of the rule of law affects the formulation of the first principle of justice and concludes with a re-statement of this first principle in the light of the discussion.
Rawls' account in section 38 opens with a description of the most basic element of the legal system, the view that there has to be 'impartial and regular' administration of public rules. Rawls describes this as "justice as regularity" but, whilst it appears the most formal part of the legal system, he includes within its correct functioning ways in which subtle bias are undermined or prevented from having more than limited effect so its scope is wider than is often included in formal views of law.
Law creates, as Rawls puts it, 'legitimate expectations' for social cooperation, including forming the basis for mutual trust. Law effectively "defines" the basic structure of a society so is fundamental to Rawls' conception. The rules that we term "laws" are also public and are governed by some precepts that are further built into the conception of justice as regularity. Included amongst these precepts are the assumptions that ought implies can; similar cases are treated similarly; there is no offense without a law and the precepts of natural justice. "Ought implies can", an important Kantian notion, is interpreted here legalistically to imply that legal systems cannot ask us to perform impossible actions. It includes a sense within it that laws are framed in "good faith" with regard to this assumption. The rule requiring similarity of treatment with regard to similar cases limits judicial discretion and sets the basis for precedents to build up into a general pattern. The central element of this second rule is the importance of 'consistency' just as the first rule was formulated by reference to 'good faith'. The third rule relates back to the point about publicity indicating that laws have to be general in statement and intent and not retroactive in application. Rules of natural justice require due process, impartiality of legal application, fairness of procedure and regular maintenance of rules.
The general conception of justice as regularity thus contains a great deal more than pure references to "formality" alone might suggest. After making this clear Rawls turns to the relationship of the rule of law to liberty. Without clear specification of what the law permits, for example, liberty is insecure. This helps to show that the desire for liberty is central to a functional legal system that is regular in application. This regularity of the legal system secures stability in social arrangements, not least with regard to penal sanctions for bad conduct and the understanding of what the latter consists in. This is the general point of all contractarian reasoning, going back to Hobbes.
Liberty is protected best by impartial and regular administration of law. On the basis of this regularity citizens have a plan for how to operate. One of the things that follows from Rawls' way of comprehending the legal system as based on securing liberty is that punishment is not seen by him (as some allege it is by Kant) as primarily retributive in point. Rather, punishment is connected to liberty in terms of responsibility being the ground on which we can trust each other to act. Since punishment is viewed in this way by Rawls it is to be expected that his account of it would differ later in substantive ways from Kant's but, unfortunately, little is really said by Rawls about this topic in Theory.
The only real point raised in section 38 concerns the way that liberties might have to be restricted more than one would wish in ideal circumstances in order to be better realised in non-ideal conditions. This point is referred to with regard to how the provisions of justice as regularity might have to be relaxed in emergency conditions. However, the point of any such relaxation would only be the better thereby to base equal liberties on the good of the representative citizen.
Section 39 turns to the further definition of the priority of liberty. Liberty can only be restricted for its own sake, as followed from the argument of section 38. But it can be restricted in two distinct ways. The first way would be that the basic liberties, whilst being equal, may be more or less extensive in range. The second way would be that the basic liberties may remain extensive but be unequally applied. If the first way is taken then the lesser extensiveness of the liberties has itself to be justified by reference to the gain of freedom of the representative citizen. On the other hand if liberties are unequally applied then the freedom of those with lesser liberty has to be all the better secured this way.
Restrictions on liberty can be grounded either on natural limitations or on contingencies of historical or social sort. Natural limitations affect the situation of children for example whilst contingencies of various sorts restrict freedom of speech (for example). However these points are distinguished by Rawls from the non-ideal circumstances in which there is injustice existent in various ways.
Rawls' general point is to consider the basis of restrictions on liberty of the two sorts indicated and to show that these restrictions cannot be such as to undermine the priority of liberty. Regulation of liberty of speech, for example, restricts liberty in various ways but it can be done in ways that are not unequal in application so such a kind of limitation can effectively be assimilated to a natural constraint despite having contingent ways of presenting itself.
Unequal liberties, if administered, by contrast, clearly show injustice exists but can still be regulated in such a way that the most important liberties are most equally allowed. This involves Rawls discussing paternalism as the real basis of inequality of liberties is a certain kind of paternalistic concern but such concern has to be guided by a theory of primary goods and by an understanding of real preferences. The discussion thus culminates with the restatement of the first principle of justice now given in a way that strikingly resembles Kant's universal principle of right in the Doctrine of Right (Ak. 6: 230). Rawls' first principle now reads: "each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all". However this new formulation of the first principle of justice is accompanied now by the 'priority rule' which indicates not just that the principles of justice are in lexical order and that liberty, hence, can only be restricted for its own sake. It also indicates the two cases in which such restrictions are plausible. There is, as yet, no systematic argument given for the priority of liberty and Rawls postpones this to section 82, towards the conclusion of Theory.
Rawls' account in section 38 opens with a description of the most basic element of the legal system, the view that there has to be 'impartial and regular' administration of public rules. Rawls describes this as "justice as regularity" but, whilst it appears the most formal part of the legal system, he includes within its correct functioning ways in which subtle bias are undermined or prevented from having more than limited effect so its scope is wider than is often included in formal views of law.
Law creates, as Rawls puts it, 'legitimate expectations' for social cooperation, including forming the basis for mutual trust. Law effectively "defines" the basic structure of a society so is fundamental to Rawls' conception. The rules that we term "laws" are also public and are governed by some precepts that are further built into the conception of justice as regularity. Included amongst these precepts are the assumptions that ought implies can; similar cases are treated similarly; there is no offense without a law and the precepts of natural justice. "Ought implies can", an important Kantian notion, is interpreted here legalistically to imply that legal systems cannot ask us to perform impossible actions. It includes a sense within it that laws are framed in "good faith" with regard to this assumption. The rule requiring similarity of treatment with regard to similar cases limits judicial discretion and sets the basis for precedents to build up into a general pattern. The central element of this second rule is the importance of 'consistency' just as the first rule was formulated by reference to 'good faith'. The third rule relates back to the point about publicity indicating that laws have to be general in statement and intent and not retroactive in application. Rules of natural justice require due process, impartiality of legal application, fairness of procedure and regular maintenance of rules.
The general conception of justice as regularity thus contains a great deal more than pure references to "formality" alone might suggest. After making this clear Rawls turns to the relationship of the rule of law to liberty. Without clear specification of what the law permits, for example, liberty is insecure. This helps to show that the desire for liberty is central to a functional legal system that is regular in application. This regularity of the legal system secures stability in social arrangements, not least with regard to penal sanctions for bad conduct and the understanding of what the latter consists in. This is the general point of all contractarian reasoning, going back to Hobbes.
Liberty is protected best by impartial and regular administration of law. On the basis of this regularity citizens have a plan for how to operate. One of the things that follows from Rawls' way of comprehending the legal system as based on securing liberty is that punishment is not seen by him (as some allege it is by Kant) as primarily retributive in point. Rather, punishment is connected to liberty in terms of responsibility being the ground on which we can trust each other to act. Since punishment is viewed in this way by Rawls it is to be expected that his account of it would differ later in substantive ways from Kant's but, unfortunately, little is really said by Rawls about this topic in Theory.
The only real point raised in section 38 concerns the way that liberties might have to be restricted more than one would wish in ideal circumstances in order to be better realised in non-ideal conditions. This point is referred to with regard to how the provisions of justice as regularity might have to be relaxed in emergency conditions. However, the point of any such relaxation would only be the better thereby to base equal liberties on the good of the representative citizen.
Section 39 turns to the further definition of the priority of liberty. Liberty can only be restricted for its own sake, as followed from the argument of section 38. But it can be restricted in two distinct ways. The first way would be that the basic liberties, whilst being equal, may be more or less extensive in range. The second way would be that the basic liberties may remain extensive but be unequally applied. If the first way is taken then the lesser extensiveness of the liberties has itself to be justified by reference to the gain of freedom of the representative citizen. On the other hand if liberties are unequally applied then the freedom of those with lesser liberty has to be all the better secured this way.
Restrictions on liberty can be grounded either on natural limitations or on contingencies of historical or social sort. Natural limitations affect the situation of children for example whilst contingencies of various sorts restrict freedom of speech (for example). However these points are distinguished by Rawls from the non-ideal circumstances in which there is injustice existent in various ways.
Rawls' general point is to consider the basis of restrictions on liberty of the two sorts indicated and to show that these restrictions cannot be such as to undermine the priority of liberty. Regulation of liberty of speech, for example, restricts liberty in various ways but it can be done in ways that are not unequal in application so such a kind of limitation can effectively be assimilated to a natural constraint despite having contingent ways of presenting itself.
Unequal liberties, if administered, by contrast, clearly show injustice exists but can still be regulated in such a way that the most important liberties are most equally allowed. This involves Rawls discussing paternalism as the real basis of inequality of liberties is a certain kind of paternalistic concern but such concern has to be guided by a theory of primary goods and by an understanding of real preferences. The discussion thus culminates with the restatement of the first principle of justice now given in a way that strikingly resembles Kant's universal principle of right in the Doctrine of Right (Ak. 6: 230). Rawls' first principle now reads: "each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all". However this new formulation of the first principle of justice is accompanied now by the 'priority rule' which indicates not just that the principles of justice are in lexical order and that liberty, hence, can only be restricted for its own sake. It also indicates the two cases in which such restrictions are plausible. There is, as yet, no systematic argument given for the priority of liberty and Rawls postpones this to section 82, towards the conclusion of Theory.
Tuesday, 12 July 2011
Rawls on Toleration and Equal Liberty
After the opening account of the "constitutional convention" that I discussed in my previous posting Rawls turns next in Chapter IV of Theory to a description of equal liberty of conscience that leads in to an account of toleration. Chapter IV is concerned as a whole with "equal liberty" so this concentration is one we should expect to emerge here.
When the device of the "original position" was invoked it was for the purpose of ensuring that principles of justice chosen would definitely not be based on considerations that uniquely favoured given parties. In fact, Rawls even assumes that the problem of future generations can be addressed by means of the device. In relation to the latter problem, the invocation of equal liberty has a special pertinence since it ensures the integrity not only of the parties in the position but continuing lines of descent from it. Rawls even goes so far as to claim that equal liberty of conscience is "the only principle" that the persons in the original condition can acknowledge by which he seems to mean the only one that they can agree to as a condition of anything (and everything) else.
Even were the parties in the "original position" convinced that the principle of utility need not compromise liberty still they could see the point of adopting the principle of equal liberty first in any case. This points to a way that the parties in the "original position" would be prompted to consider pluralist or "mixed" doctrines rather than the allegedly "monistic" one of utilitarianism. Further the principle of equal liberty of conscience meets the criterion of finality as it is not a principle, once adopted, that can be bent in favour of something else. The "veil of ignorance" strengthens the case for its adoption since it ensures one has no means of knowing whether one would have views that were in the majority.
The discussion of future generations furthers the case for equal liberty since the adoption of the principle is one that members of other generations can be assumed to also desire for the same reason that parties in the original position would do so. It also meets the test of a reasonable paternalism in being a principle that we can assume those under our guardianship would adopt on attainment of the age of reason.
Having presented the basic argument for the principle of equal liberty Rawls goes on to discuss toleration. Liberty of conscience is something that can be restricted under special circumstances that involve severe threats to public order and security. However these are the only conditions as there is nothing in political authority strictly considered that provides it with competence in other domains. The restriction of liberty in the severe circumstances mentioned would be accepted within the original position since disruption of the conditions of liberty is a danger to all. Hence restriction in these cases is an "enabling right" in relation to the provision of liberty itself.
It follows from this point that toleration is a general consequence of the acceptance of the principle of equal liberty. Hence granting it is granting something that is just, denying it is unjust. As Rawls puts it in a very Kantian formula: "Liberty is governed by the necessary conditions for liberty itself". This formula echoes the universal principle of right in the Doctrine of Right that referred to freedom in accordance with a universal law so that "the freedom of choice of each can coexist with everyone's freedom" (Ak. 6: 230).
After arriving at this point Rawls concludes by providing some reasons why toleration should even extend to the intolerant despite the fact that intolerant groups would have no right to complain where toleration not to be extended to them. No particular view of religious truth can be accepted in the original position so there is no basis for anyone thinking that their own views have any privileged status. One of the nice points Rawls makes in this connection is that even the intolerant principle that all should obey the injunctions of God at the expense of anything else is indeterminate in the sense that no one has a status that politically can enable them to determine what these injunctions consist in.
The political basis for toleration of the intolerant consists, fundamentally, however, in the stability of just institutions in the sense that they reproduce adherence to themselves. This psychological truth about just institutions is one that should give members of a well-ordered society confidence in these institutions. The only case in which the intolerant have toleration withdrawn are where their intolerance poses danger to the whole body politic (and hence this is not a special principle applied to the intolerant).
When the device of the "original position" was invoked it was for the purpose of ensuring that principles of justice chosen would definitely not be based on considerations that uniquely favoured given parties. In fact, Rawls even assumes that the problem of future generations can be addressed by means of the device. In relation to the latter problem, the invocation of equal liberty has a special pertinence since it ensures the integrity not only of the parties in the position but continuing lines of descent from it. Rawls even goes so far as to claim that equal liberty of conscience is "the only principle" that the persons in the original condition can acknowledge by which he seems to mean the only one that they can agree to as a condition of anything (and everything) else.
Even were the parties in the "original position" convinced that the principle of utility need not compromise liberty still they could see the point of adopting the principle of equal liberty first in any case. This points to a way that the parties in the "original position" would be prompted to consider pluralist or "mixed" doctrines rather than the allegedly "monistic" one of utilitarianism. Further the principle of equal liberty of conscience meets the criterion of finality as it is not a principle, once adopted, that can be bent in favour of something else. The "veil of ignorance" strengthens the case for its adoption since it ensures one has no means of knowing whether one would have views that were in the majority.
The discussion of future generations furthers the case for equal liberty since the adoption of the principle is one that members of other generations can be assumed to also desire for the same reason that parties in the original position would do so. It also meets the test of a reasonable paternalism in being a principle that we can assume those under our guardianship would adopt on attainment of the age of reason.
Having presented the basic argument for the principle of equal liberty Rawls goes on to discuss toleration. Liberty of conscience is something that can be restricted under special circumstances that involve severe threats to public order and security. However these are the only conditions as there is nothing in political authority strictly considered that provides it with competence in other domains. The restriction of liberty in the severe circumstances mentioned would be accepted within the original position since disruption of the conditions of liberty is a danger to all. Hence restriction in these cases is an "enabling right" in relation to the provision of liberty itself.
It follows from this point that toleration is a general consequence of the acceptance of the principle of equal liberty. Hence granting it is granting something that is just, denying it is unjust. As Rawls puts it in a very Kantian formula: "Liberty is governed by the necessary conditions for liberty itself". This formula echoes the universal principle of right in the Doctrine of Right that referred to freedom in accordance with a universal law so that "the freedom of choice of each can coexist with everyone's freedom" (Ak. 6: 230).
After arriving at this point Rawls concludes by providing some reasons why toleration should even extend to the intolerant despite the fact that intolerant groups would have no right to complain where toleration not to be extended to them. No particular view of religious truth can be accepted in the original position so there is no basis for anyone thinking that their own views have any privileged status. One of the nice points Rawls makes in this connection is that even the intolerant principle that all should obey the injunctions of God at the expense of anything else is indeterminate in the sense that no one has a status that politically can enable them to determine what these injunctions consist in.
The political basis for toleration of the intolerant consists, fundamentally, however, in the stability of just institutions in the sense that they reproduce adherence to themselves. This psychological truth about just institutions is one that should give members of a well-ordered society confidence in these institutions. The only case in which the intolerant have toleration withdrawn are where their intolerance poses danger to the whole body politic (and hence this is not a special principle applied to the intolerant).
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