The priority of liberty has always played a central role in John Rawls's political theory. This chapter reviews Rawls's three arguments for the priority of liberty in Theory and argues that two of them do indeed fail (either in whole or in part) because of two types of error. It presents a partial reconstruction of the hierarchy argument, and demonstrates that our highest‐order interest in the development and exercise of rationality follows naturally from the Kantian commitment (...) to autonomy that Rawls expresses in Theory. The chapter discusses an apparent problem with the scope of the hierarchy argument: it does not offer a particularly compelling defense of the priority of the basic political liberties, including the rights to vote and hold public office. The chapter also discusses the implications of the priority of liberty for the American practice of civil libertarianism. (shrink)

John Rawls’s thesis that a certain package of basic liberties should be given lexical priority is of great interest for legal and political philosophy, but it has received relatively little defense from Rawls or his supporters. In this paper, I examine three arguments for the thesis: the first is based on the two ‘moral powers’; the second, on the social bases of self-respect; and the third, on a Kantian notion of autonomy. I argue none of these accounts successfully establishes (...) 1) the distinct claim of lexical priority, 2) for the complete package of basic liberties, on the basis of reasons that are appropriately public. In turn, I propose an alternative argument, in support of those two claims, based on the social or ‘relational’ conception of equality. (shrink)

Thomas Pogge argues that John Rawls’s priority of liberty rule is not constraining enough: it permits morally unacceptable restrictions of basic liberties. Because of this, Pogge claims that Rawls fails in his two central ambitions: to construct a moral conception that (1) opposes utilitarianism and (2) matches his judgments in reflective equilibrium. Pogge attributes this error to Rawls’s “purely recipient-oriented theorizing”—assessing a society’s basic structure based on how its citizens fare. I argue that Rawls’s theory does not allow (...) restrictions of liberty that are offensive to moral considerations. I then explain how my arguments against Pogge show that Rawls’s idea of reflective equilibrium is crucial for assessing a society’s basic structure and how it follows from this that Rawls’s theorizing is not purely recipient-oriented. (shrink)

Rawls offers three arguments for the priority of liberty in Theory, two of which share a common error: the belief that once we have shown the instrumental value of the basic liberties for some essential purpose (e.g., securing self-respect), we have automatically shown the reason for their lexical priority. The third argument, however, does not share this error and can be reconstructed along Kantian lines: beginning with the Kantian conception of autonomy endorsed by Rawls in section 40 (...) of Theory, we can explain our highest-order interest in rationality, justify the lexical priority of all basic liberties, and reinterpret Rawls’ threshold condition for the application of the priority of liberty. Perhaps unsurprisingly, this Kantian reconstruction will not work within the radically different framework of Political Liberalism. (shrink)

Libertarian views on rights tend to rule out coercive redistribution for purposes of public health care guarantees, whereas liberal conceptions support coercive funding of potentially unlimited access to medical services in the name of medical needs. Taking the “priority of liberty” seriously as supreme political value, a plausible prudential argument can avoid these extremes by providing systematic reasons for both delivering and limiting publicly financed guarantees. Given impending demographic change and rapid technical progress in medicine, only a two-tier (...) system with explicitly limited public guarantees and optional privately financed health services seems acceptable. (shrink)

Are government restrictions on hate speech consistent with the priority of liberty? This relatively narrow policy question will serve as the starting point for a wider discussion of the use and abuse of nonideal theory in contemporary political philosophy, especially as practiced on the academic left. I begin by showing that hate speech (understood as group libel) can undermine fair equality of opportunity for historically-oppressed groups but that the priority of liberty seems to forbid its restriction. (...) This tension between free speech and equal opportunity creates a dilemma for liberal egalitarians. Nonideal theory apparently offers an escape from this dilemma, but after examining three versions of such an escape strategy, I conclude that none is possible: liberal egalitarians are indeed forced to choose between liberty and equality in this case and others. I finish the paper by examining its implications for other policy arenas, including markets in transplantable human organs and women’s reproductive services. (shrink)

Rawls offers three arguments for the priority of liberty in Theory, two of which share a common error: the belief that once we have shown the instrumental value of the basic liberties for some essential purpose (e.g., securing self-respect), we have automatically shown the reason for their lexical priority. The third argument, however, does not share this error and can be reconstructed along Kantian lines: beginning with the Kantian conception of autonomy endorsed by Rawls in section 40 (...) of Theory, we can explain our highest-order interest in rationality, justify the lexical priority of all basic liberties, and reinterpret Rawls’ threshold condition for the application of the priority of liberty. Perhaps unsurprisingly, this Kantian reconstruction will not work within the radically different framework of Political Liberalism. (shrink)

This is a one page handout, which draws attention to subtle adaptations that H.L.A. Hart makes regarding material from Henry Sidgwick, when he debates with Rawls and appeals to Sidgwick's objections to the priority of liberty. These adaptations challenge the impression that Rawls should have known better.

The distinction drawn by Rawls between the ideas of property-owning democracy and welfare state capitalism parallels his distinction between justice-based ‘liberalisms of freedom’ (including his own conception of justice as fairness) and utilitarian- based ‘liberalisms of happiness’. In this paper I argue that Rawls’s failure to attach the same level of significance to essential socio-economic rights and liberties as he attached to the traditional liberal civil and political rights and liberties gives justice as fairness a quasi-utilitarian character, which is incompatible (...) with the fundamental objective of protecting the highest.-order interests of citizens conceived as free and equal. I argue that in order fully to protect these interests, rights to access to non-human capital and productive resources should be assigned the same level of significance as that assigned to the civil and political rights and liberties, and prioritized over the lower-order rights and benefits regulated by Rawls’s second principle of justice. (shrink)

자유의 우선성은 자유의 개념적 지위를 공고히 하기 위한 롤스의 독창적인 장치다. 그러나 자유의 우선성은 여러 학자에 의해 도전받는다. 이러한 비판이 첫째, 나름의 논리적 인 근거를 지니고 둘째, 롤스 정치철학의 본질적인 주제에 영향을 끼친다면 이에 대한 대 응은 롤스 정치철학의 설득력을 좌우하게 될 것이다. 이에 본 고는 2장에서 논의의 배경으 로서 자유의 우선성 개념을 살피고 원조 격인 비판을 탐구한다. 다음으로 3장에서는 자유 의 우선성 비판의 평등주의적 해석을 탐구한다. 평등주의 진영에서는 자유의 우선성 비판 을 평등주의적으로 해석하여 롤스 이론의 평등주의적 색채가 희석되었음을 지적하고 (...) 그 대안을 제시한다. 뒤이어 4장에서는 정치적 자유의 공정한 가치를 활용하여 자유의 우선 성 비판의 평등주의적 해석에 대응할 수 있음을 보인다. 특히 평등주의 진영이 내놓은 3장 의 대안보다 정치적 자유의 공정한 가치를 재조명하는 것이 롤스 정치철학의 평등주의적 함의와 자유의 우선성 개념의 공존에 유리함을 논증한다. 마지막으로 5장에서는 정치적 자유의 공정한 가치는 제도적으로 보완되어야만 현실에서 유의미하게 받아들여질 수 있으 며 정치적 전회 이후 차등의 원칙의 역할이 축소되었다는 비판은 여전히 해결되지 않았음 을 본 고의 한계로 남긴다. (shrink)

This paper responds to material from Scott Soames’s wide ranging book The World Philosophy Made, material which I am actually tempted to overlook. Soames adds a detail to a criticism H.L.A. Hart makes of John Rawls, but I argue that Soames cannot consistently endorse this criticism, given his acceptance of trickle-down economics and his aspiration to cohere with a dominant strand of right-wing American philosophy.

Many political controversies involve conflicts between civil liberties and other important social goals. The orthodox view in liberal political theory is that civil liberties must be given strict priority over competing social goals because of the importance of the interests advanced by such liberties and/or their role in upholding the status of citizens. This paper criticizes both lines of argument. Interest-based arguments fail because we are sometimes willing to sacrifice the very fundamental interests of some citizens in order to (...) advance large collections of lower priority interests. This shows that civil liberties cannot have strict priority over other social goals just because of the importance of the interests that they protect. Meanwhile, because considerations of status are often at stake on both sides of conflicts between important civil liberties and other social goals, their importance cannot provide reason to give strict priority to such liberties. These arguments cast doubt on the view that civil liberties ought to have strict priority over other social goals. (shrink)

Although the thesis that equal basic liberties take priority over increases in wealth is one of the two most important theses in the rawlsian theory of justice, The argumentation for it is obscure. This article emphasizes the centrality of self-Respect in rawls' treatment of liberty, Specifies five particular assumptions he makes, And constructs a deductive argument from the rawlsian assumptions to the rawlsian conclusion about liberty. Of special interest are the premises of economic adequacy for the worst-Off (...) man and the incentive value of economic inequality, Which reveal the relation between the difference principle and the priority of liberty. (shrink)

This article engages with H. P. P. Lötter’s account of democracy, liberty, and poverty in this IJAP symposium devoted to his book, Poverty, Ethics, and Justice. For Lötter liberty and democracy are intrinsically part of what is meant by poverty eradication and necessary instrumentally to secure whatever else it means. Lötter insists that liberty rights and socio-economic rights are interdependent and that neither has moral priority. This account is pitched at a level of generality, and contains (...) ambiguities, that evade certain hard but necessary questions, the main one being whether Lötter’s theory of the ‘co-originality’ of liberty and social rights is opposed to all reasonable constructions and entailments of the thesis of the priority of liberties. I suggest that he must accept a ‘weak’ priority thesis in order to insulate his overall argument from an authoritarian reading. Yet it is not clear whether Lötter’s would accept that politics enjoys a necessary centrality in adjudicating uncertainties within economic theory and policy-making, that democracy is irreducibly procedural in ways that licence particular voting and governing actions that are not necessarily pro-poor, and that political liberties plus a range of ‘negative’ civil liberties ought to be protected from trade-offs with prospective welfare and equality gains. Several aspects of Lötter’s account seem to block such moves, but I contend that the struggle against poverty and inequality is necessarily undertaken on a terrain of political and epistemic uncertainty, and that a democratic polity premised on institutionalised respect for uncertainty offers the best bet for realising welfare and social justice at an acceptable cost while respecting autonomy. (shrink)

This article challenges the idea that the priority of liberty poses a threat to individual and population health. While acknowledging there are cases in which liberty does indeed pose a threat to the health of individuals and populations, I argue that the tension between liberty and health is overstated and that much can be done to relieve this tension. Indeed, liberty and health can and should be viewed as co-equal values in our broader conception of (...) health justice. My thesis is moderate to the extent it acknowledges limits to the coequal status of these twin values; robust to the extent it conceives legitimate health interventions as the outcome of complex and multiperspectival processes of deliberative testing. (shrink)

Aggregation-friendly moral theories such as classical utilitarianism are forced to invest a great deal of ingenuity in damping out and modulating the effects of welfare aggregation. In Mill's treatment, the problem famously appears as the puzzle of how the Principle of Liberty is meant to be compatible with the Principle of Utility, and there have been a great many attempted interpretations of his solution, all, in my view, unsatisfactory. I will first reconstruct Mill's generally unnoticed account of the psychological (...) implementation of higher pleasures; this will allow me to explain what the distinction between higher and lower pleasures was, and how Mill was introduced lexical preference orderings into his theory. Then I will show how the underlying psychological theory permits Mill to argue for the lexical priority of liberty over the goods which liberty allows us to obtain. Finally, I will turn to the Millian considerations omitted from the argument I will have reconstructed. By way of explaining why they are so difficult to accommodate, I will consider why Mill might have abandoned his projected sciences of character. I will take my leave by asking what Mill's failure to turn his implementation analysis of the higher pleasures into an argument expressing the importance of individuality and originality means for us. (shrink)

The article examines Quentin Skinner's influential interpretation of Machiavelli's views on liberty, and the sharp divergence between his methodological ideas and his actual practice. The paper explores how Skinner's political ideals directed his interpretation against his own methodological precepts, to offer a basis for a ‘revival’ of republican theory. Skinner's reinterpretation of Machiavelli as a theorist of negative liberty is examined, and refuted. The article analyses Skinner's claim about liberty as the key political value for Machiavelli, and (...) demonstrates that liberty is secondary to empire on the list of Machiavelli's priorities. Skinner's vocabulary and efforts to tone down or ignore Machiavelli's more aggressive ideas are closely examined. The analysis offered in the article, it is suggested, has wider implications, showing the difficulty of applying contextualism in practice, by the very founder of this approach in the history of ideas. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Ideas 62.1 (2001) 161-181 [Access article in PDF] Translating Liberty in Nineteenth-Century Japan Douglas Howland A concept of liberty was but one element of the Japanese engagement with western political theory after the Perry intrusion of 1853, when United States warships led by Commodore Matthew Perry forced Japan to negotiate a commercial treaty with the U.S. This scandal, which ultimately led to (...) the Meiji Restoration of 1867, immediately reorganized scholarly priorities among those intellectuals interested in western knowledge and technology. Western learning under the "feudal" Tokugawa regime (1603-1867) was organized as "Dutch studies" because the Dutch were the sole European trading partner of Japan from 1641 to 1854. Dutch studies paid particular attention to European mathematics, astronomy, geography, natural history, and the Dutch language. The Perry intrusion, however, prompted the rise of "western learning": language study quickly expanded to include English, French, and German; and the content of learning emphasized European law and political philosophy. But the concepts that defined this content of western thought did not translate well; they did not fit naturally with existing Japanese concepts. Hence the translation of western political theory necessitated the invention of new terminology with which to engage the new political language. Accordingly, Japanese efforts to translate western political theory must be understood as both problems of language, the creation and circulation of new concepts, as well as problems of action, and the usage of new concepts in debates about the programs and policies to be implemented in a "westernizing" Japan. 1 [End Page 161]The scholars who figure in this essay--Kato Hiroyuki, Tsuda Mamichi, Nishi Amane, Kanda Takahira, Fukuzawa Yukichi, and Nakamura Keiu--were all key figures in the intellectual passage from Tokugawa to Meiji, from Dutch studies to western learning. They began their careers in the Tokugawa institute for Dutch studies; most traveled to Holland, England, or the United States during the 1860s; and after the Meiji Restoration they became intellectual and educational leaders under the new administration. 2 In addition to founding private academies or filling prominent government posts, they created the first literary society, the Meiji Six Society (named after the year of its founding, the sixth year of the Emperor Meiji's reign, 1873), which sponsored public debates, published these proceedings in the Meiji Six Journal, and so hoped to promote enlightenment among the Japanese people. In addition to introducing public debate to Japan, this transitional intelligentsia was involved in the fundamental work of creating the language in which to raise issues of constitutional form or personal freedoms. In their translations of western texts and original texts about western law and political philosophy they created the neologisms to translate western concepts and participated in the standardization of terminology that made western knowledge coherent.The two concepts discussed in this essay, which were among the first to figure prominently in intellectual debates of the early 1870s, were "liberty" and "religion," the pairing of which in the debate over freedom of religion from 1872 to 1874 was crucial in defining a Japanese conception of liberty. Although religious liberty arose in western Europe as a result of the conflict between church and state authorities, the issue in Japan was a direct challenge to the new central government's attempt to decree a national Shinto doctrine in 1868. As the sole case of unanimous support for personal liberty among the transitional intelligentsia, the debate over freedom of religion determined key distinctions between private and public behavior that defined the Japanese conception of "liberty" for the duration of Japan's imperial constitution (to 1945). As a right of individuals, liberty resided in the exclusively private domain of thought, conscience, and religious faith. As a public matter the people's liberty necessarily gave way to government maintenance of public order.In part this essay responds to the work of Japanese philologists who study the translation and standardization of modern Japanese vocabulary. Much of this work is based on dictionaries; a word is said to have become standard as it appears in greater numbers of Japanese-Chinese, Japanese... (shrink)

Liberalism has often been viewed as a continuing dialogue about the relative priorities between liberty and equality. When the version of equality under discussion requires equalization of outcomes, it is easy to see how the two ideals might conflict. But when the version of equality requires only equalization of opportunities, the conflict has been treated as greatly muted since the principle of equality seems so meager in its implications. However, when one looks carefully at various versions of equal opportunity (...) and various versions of liberty, the conflict between them is, in fact, both dramatic and inescapable. Each version of the conflict poses hard choices which defy anysystematicpattern granting priority to one of these basic values over the other. In this essay, I will flesh out and argue for this picture of fundamental conflict, and then turn to some more general issues about the kinds of answers we should expect to the basic questions of liberal theory. (shrink)

Most criticism and exposition of John Rawls’s political theory has focused on his account of distributive justice rather than on his support for liberalism. Because of this, much of his argument for protecting the basic liberties remains under explained. Specifically, Rawls claims that representative citizens would agree to guarantee those social conditions necessary for the exercise and development of the two moral powers, but he does not adequately explain why protecting the basic liberties would guarantee these social conditions. This gap (...) in his argument leads to two problems. First, the Rawlsian argument for the priority of liberty would fail if the gap could not be filled. His argument would still support the protection of individual freedoms, but these freedoms would be treated like other primary goods and regulated by the difference principle. Second, without a full argument, there is not sufficient reason to favor Rawls’s left-liberal conception of the basic liberties over a more right-leaning conception that would prioritize the protection of free-market rights. To address these two problems, this paper fills in the gap in order to better explain Rawls’s full argument for egalitarian liberalism. (shrink)

To be a liberal is, among other things, to grant basic liberties some degree of priority over other aspects of justice. But why do basic liberties warrant this special treatment? For Rawls, the answer has to do with the allegedly special connection between these freedoms and the ‘two moral powers’ of reasonableness and rationality. Basic freedoms are said to be preconditions for the development and exercise of these powers and are held to warrant priority over other justice-relevant values (...) for that reason. In the first half of the article I mount an internal critique of this Rawlsian line, arguing that it is flawed in two main ways. First, it overestimates the contribution of basic freedom to moral personality. Second, it underestimates the contribution of non-liberty resources to moral personality. In the second half of the article I repair these flaws. The result is a new, intriguingly radical version of justice as fairness, one with surprising—yet plausible—implications for economic and gender justice. (shrink)

Jiwei Ci's Moral China in the Age of Reform is a landmark in our attempt to understand, diagnose, and provide solutions to the moral crisis in post-Mao China. It is difficult not to be deeply impressed by the perceptive observations, provocative claims, and sophisticated arguments Ci presents in this book. In my brief comment, I shall think with Ci on the relationship between the democratic and liberal components of a liberal democratic society on the one hand and that between the (...) right and the good on the other.Ci makes the claim that in the very idea of liberal democracy the liberal component has priority over the democratic component. What he means by this is that "members of a modern society … pursue... (shrink)

ABSTRACT Conventions on human rights give priority to parents in education but modern states tend to make uniform provision, tending towards a monopoly position. Education itself is not incompatible with liberty but is a condition of it. A three-sided conflict exists, however, between the state, parents and professionals as to who should represent the interests of children. Liberty is best preserved if the conflict is resolved in favour of parents, for only parental decision-making guarantees educational variety and (...) change. In addition, the parental relationship itself generates rights, including one derived from the broader political right to cultural and religious freedom. (shrink)

There is widespread agreement among political philosophers that there is a core set of civil and political liberties that ought to be given special protections by any state. In contrast, there is significant disagreement about whether (and which) economic liberties deserve the same level of protection and priority. To what extent should freedom in economic activities be protected by and from the government? To what extent is it justifiable for government to interfere with economic activities for the sake of (...) equalizing opportunities and protecting the welfare of society’s vulnerable? John Rawls famously held that only a narrow range of economic liberties are basic liberties deserving special protections, though he never offered a full defense of that claim. In _Free Market Fairness_ John Tomasi argued against Rawls, claiming it follows from Rawls’s own assumptions that we ought to protect a broad range of economic liberties as basic liberties. This paper attempts to provide the missing argument in favor of Rawls’s position in this debate and against Tomasi’s. First, I argue for a novel interpretation of Rawls’s criterion for basic liberties. Second, I use that interpretation to argue that Rawls was correct and consistent to exclude contract rights and productive property rights from the scheme of basic liberties. (shrink)

Public health policy often limits people’s liberty for their own good. The very point of many types of public health measures is to restrict people’s options in order to stop them from doing unhealthy things, for example use harmful recreational drugs or drive without a seatbelt. While such restrictive public health policies enjoy widespread support, so does the traditional liberal idea that liberty (or autonomy) is a higher value, to be given priority in most, if not all, (...) circumstances. In this text, I will defend the thesis that liberty is an important value, but with no claim to priority. (shrink)

Lord Sumption, a former Justice of the Supreme Court, has been a prominent critic of coronavirus restrictions regulations in the UK. Since the start of the pandemic, he has consistently questioned both the policy aims and the regulatory methods of the Westminster government. He has also challenged rationales that hold that all lives are of equal value. In this paper, I explore and question Lord Sumption’s views on morality, politics and law, querying the coherence of his broad philosophy and his (...) arguments regarding coronavirus regulations with his judicial decision in the assisted-dying case of R v Ministry of Justice. In Nicklinson, Lord Sumption argued for restrictions on liberty given the priority of the sanctity of life principle and the protection of others who may be vulnerable, as well as for deference to policy-making institutions in instances of values-based disagreement. The apparent inconsistencies in his positions, I argue, are not clearly reconcilable, and invite critical analysis of his impacts on health law and policy. (shrink)

With the publication of A Theory of Justice in 1971, John Rawls not only rejuvenated contemporary political philosophy but also defended a Kantian form of Enlightenment liberalism called “justice as fairness.” Enlightenment liberalism stresses the development and exercise of our capacity for autonomy, while Reformation liberalism emphasizes diversity and the toleration that encourages it. These two strands of liberalism are often mutually supporting, but they conflict in a surprising number of cases, whether over the accommodation of group difference, the design (...) of civic education, or the promotion of liberal values internationally. During the 1980’s, however, Rawls began to jettison key Kantian characteristics of his theory, a process culminating in the 1993 release of Political Liberalism and completing the transformation of justice as fairness into a Reformation liberalism. -/- Reconstructing Rawls argues that this transformation was a tragic mistake because it jeopardized the most important features of his theory, viz. the lexical priorities of right, liberty, and fair equality of opportunity as well as the difference principle. Controversially, this book contends that Rawls’s so-called “political turn,” motivated by a newfound interest in diversity and the accommodation of difference, has been unhealthy for autonomy-based liberalism and has pushed liberalism more broadly towards cultural relativism, be it in the guise of liberal multiculturalism or critiques of cosmopolitan distributive-justice theories. The book then demonstrates that the central elements of justice as fairness can only be defended within the context of a Kantian Enlightenment liberalism and that Rawls’s hope for a more pluralistic grounding for his theory, endorsed by a wide variety of belief systems present in modern democratic societies, is illusory. -/- Reconstructing Rawls is the first book to systematically compare Rawls’s and Kant’s theories and the first to offer an internal critique and reconstruction of justice as fairness, reconceiving it as a comprehensive, universalistic Kantian liberalism. By doing so, it gives us both the vision of a liberal world order—“a republicanism of all states, together and separately,” as Kant put it—and a mode of justification addressed to all men and women, not as members of particular nations, races, and faiths, but as human beings, as citizens of the world. In short, it reclaims Rawls for the Enlightenment. (shrink)

Confucianism has a deep influence on the opinion of value priority in traditional Chinese culture, which consider the value of morality prior to that of utility; the value of moral merit prior to that of intelligent; the value of group prior to that of individuals; the value of peace and safety prior to that of freedom and liberty; the value of harmony prior to that of conflict. This kind of value priority has performed very important and positive (...) functions in Chinese culture, along with certain side-effects. Under the context of globalization, it is possible for the Chinese and Western values to complement each other in fusional harmony. (shrink)

According to John Tomasi's Free Market Fairness, there are serious constraints on what a liberal state may do to promote economic justice. Tomasi defends this claim by arguing that important economic liberties ought to be regarded as “basic” and given special priority over other liberal concerns, including those of economic justice. I argue that Tomasi's defense of this claim is unsuccessful. One problem takes the form of a dilemma: depending on how the claim is formulated more precisely, Tomasi's argument (...) seems either to be compatible with standard (e.g., Rawlsian) liberalism or to tell against even the minimal taxation that would be necessary to support the social safety net he supports. Second, granting “basic” status to economic liberties would in many cases defeat the goal, self-authorship, that Tomasi sees himself as sharing with other liberals. Third, contrary to Tomasi's suggestions, no inconsistency arises when liberals (such as Rawls) refuse to recognize the economic liberties as basic. Fourth and finally, the special significance that Tomasi attaches to agency does not provide any additional reason for accepting Tomasi's conclusions. (shrink)

Habermas' discourse theory stresses the autonomy of public deliberation transcending the spontaneous emergence of private networks of legal relationships between individuals. Only the public discourse which is detached from the inertia of overlapping practical forms of coordination can refer to the ideally designed social work of legitimated interpersonal relationships. The democratic constitution is regarded as a legal institutionalization of the priority of the public forum of discourse. Conceptions related to classical liberalism would question the cognitive potential of public deliberation, (...) and even deny its productivity as a normative frame of reference for (post‐)modern societies which are confronted with the challenge of uncertainty and the continuous process of self‐transformation. (shrink)

There are other problems for John Rawls’s philosophy that can be extracted from Henry Sidgwick’s discussion of the priority of freedom, apart from the problem H.L.A. Hart focuses on. This paper considers one such problem – that it is an empirical issue whether a sane adult is better off more free, rather than something to be assumed – and presents one Rawlsian solution.

This essay proposes that while a "Christian" democracy may be too idealistic, liberal democracy presupposes transcendent moral and spiritual norms, in particular a Judeo-Christian foundation for human dignity and human rights. A Biblical understanding of human nature as fallible and imperfect susceptible to worldly temptations, emphasizes free choice and personal responsibility, and the imperative to limit the temporal exercise of power by any man or institution. Maritain's concept of integral or Christian humanism is founded on personalism, the unique value and (...) dignity of each human being created in the image of God, and the need for community. The major challenge for literal democracy is how to reconcile individual freedom with socio-economic-political-legal institutions and processes which require the constraint of man-made laws and the exercise of authority and power The essay condudes that perhaps the major legacy of the American founding is the notion of the priority of liberty which offers the best prospects for conjoining reason and faith, the secular and the sacred, Athens and Jerusalem, The priority of liberty also animates Maritain's vision of a "Christianly-inspired" personalistic society capable of advancing both individual human flourishing and the common good. (shrink)

My dissertation examines the rights of children in the context of liberal conceptions of justice. The theoretical aspects of the dissertation concern liberal paternalism, autonomy, and the adequacy of Rawls's argument for the lexical priority of liberty. I apply my theoretical conclusions to practical issues of medical decision making for children, compulsory education, parental and state authority, and the age of majority. ;I begin with an analysis of paternalism in liberal political theory and its justificatory bases in the (...) concepts of rationality and autonomy. On the basis of empirical studies of children's rationality I draw the preliminary conclusion that the age of majority should be lowered to fourteen years. Next, I consider utilitarian justifications for paternalistic treatment of children. I conclude that utilitarianism leads to an illiberal paternalism that would both maintain the present age of majority and call for expanded compulsory education and compulsory parent training. ;In light of utilitarian objections to rationality-based paternalism I consider whether the scope of liberal paternalism might be expanded to give greater weight to welfarist concerns. I argue against Rawls's lexical priority of liberty and for a more flexible balancing of liberty against welfare within the conception of justice as fairness. ;Turning to concrete problems, I analyze recent cases in law involving transplantation of organs between siblings, and argue that the nature of intimate relationships provides a ground for the partial compromise of freedom of the person in the context of family medical needs. However, I contend that adolescents should have authority to make their own medical decisions at age fourteen. I consider the proper scope of parental authority to shape the lives and values of children. I consider the justification and scope of compulsory education and propose a non-compulsory incentive system for continued education after the age of fourteen years. On the basis of my earlier argument for balancing welfare against liberty, I claim that it is permissible and advisable to set a higher age threshold for drinking, driving, marriage, and military service than is set for majority generally. (shrink)

In A Theory of Justice, John Rawls argues that self-respect is ‘perhaps the most important’ primary good and that its status as such gives crucial support to controversial ideas like the lexical priority of liberty. Given the importance of these ideas for Rawls, it should be no surprise that they have attracted much critical attention. In response to these critics, I give a defense of self-respect that grounds its importance in Rawls’s moral conception of the person. I show (...) that this understanding of self-respect goes well beyond giving support to the lexical priority of liberty, also supporting Rawls’s still more controversial view of public reason. On my account, taking self-respect seriously requires the coercive enforcement of public reason. This is a novel argument for public reason, in that it grounds the idea in justice as fairness and mandates its coercive enforcement. (shrink)

In this essay Loren Lomasky wryly proposes that the views of Rawls and Nozick might not be as radically divergent as is conventionally supposed. To demonstrate this proposition, Lomasky invents “Twin Harvard” counterparts of Rawls and Nozick. The twist is that Twin Rawls turns out to be a leading libertarian theorist while Twin Nozick endorses a regime of sweeping redistribution. In each case the position follows from familiar elements in the theories of their respective, real-world counterparts. Lomasky concludes that Twin (...) Rawls actually makes better use of familiar Rawlsian themes-such as the veil of ignorance, strains of commitment, and the priority of liberty-than does Rawls himself. Moreover, Rawls's own attempts at combating libertarianism are seen to be weak, sometimes embarrassingly so. Libertarianism is a specter that he devoutly wishes to exorcize, but cannot. Conversely, the rejection of libertarianism by Twin Nozick (and Nozick?) is striking but shallow. Footnotesa A draft of this essay was prepared while I was enjoying a residential fellowship from the Centre for Applied Philosophy and Public Ethics, Charles Sturt University, in Canberra, Australia. I have benefited from discussions following talks at the Social and Political Theory program seminar at the Australian National University and the Harvard College Department of Government. (shrink)

Rawls has been criticized by political philosophers from more right-leaning perspectives. John Tomasi and Jessica Flanigan, for example, have argued that the logic internal to his high liberalism requires expanding the list of basic rights. Flanigan argues that nearly any freedom should be basic. Her argument has significant implications for the viability of high liberalism and its commitment to many aspects of the common good. I offer several novel responses on behalf of high liberalism. I argue that the most effective (...) response to her argument will require that high liberals abandon the commitment to the lexical priority of liberty. As a consequence, the common good will end up playing a more prominent role within the high liberal paradigm. (shrink)

This article considers and ultimately rejects three prominent liberal egalitarian strategies for safeguarding the occupational freedom of the economically talented. First, Dworkinian concerns regarding the envy of the talented for the less talented are shown to be insufficient to rule out occupationally coercive taxation. Second, Rawlsian arguments about the priority of basic liberties in general and freedom of occupation in particular are shown to be unsuccessful, primarily because Rawls lacks the theoretical resources to protect freedom of occupation as a (...) basic liberty. Finally, concerns about the practical difficulty and moral undesirability of gathering the information necessary to implement occupationally coercive taxation are shown to be insufficient to rule out such taxation. The aim of the article is not to lead liberal egalitarians to reject freedom of occupation. Rather, the aim is to highlight the difficulties in protecting freedom of occupation and to motivate work on alternative liberal egalitarian strategies for safeguarding this important economic liberty. At the end of the article, a hypothesis is put forward for why occupationally coercive taxation should be rejected that appeals to the prohibition on using people as means. (shrink)

Centre for Applied Philosophy and Public Ethics, The Australian National University, LPO Box 8260, ANU, Canberra ACT 2601, Australia. Email: michael.selgelid{at}anu.edu.au ' + u + '@ ' + d + ' '/ /- ->. Home page: http: //www.cappe.edu.au/staff/michael-selgelid.htmThis article advocates the development of a moderate pluralist theory of political philosophy that recognizes that utility, liberty and equality are legitimate, independent social values and that none should have absolute priority over the others. Inter alia, such a theory would provide (...) a principled means for striking a balance, or making trade-offs, between these values in cases of conflict. Recent developments in public health ethics have made progress in thinking about how to make trade-offs between liberty and utility in particular. While public health ethicists often claim that the least restrictive alternative should be used to achieve the public health goal in question, I argue that a plausible but under-recognized idea is that the least restrictive alternative might sometimes involve improvement of global health via redistributive taxation—i.e., rather than coercive social distancing measures. I conclude by demonstrating that the proportionality principle leaves open the question of when exactly utility outweighs liberty or vice versa—and I argue that, rather than speaking about the morality of liberty-infringing public health interventions in categorical/binary terms, it would be more fruitful and realistic to think and speak about the degree to which a liberty-infringing public health intervention is morally appropriate. CiteULike Connotea Del.icio.us What's this? (shrink)

A half-century of Rawls interpreters have overemphasized economic equality in A Theory of Justice, slighting liberty—the central value of liberalism—in the process. From luck-egalitarian readings of Rawls to more recent claims that Rawls was a “reticent socialist,” these interpretations have obscured Rawls’s identity as a philosopher of freedom. They have also obscured the perhaps surprising fact that Rawlsian liberties (basic and non-basic) restrain and even undermine that same economic equality. As I will show in this article, such undermining occurs (...) in three areas: first, in the lexical priority of the basic liberties; second, in the (underappreciated) role played by free and competitive markets in Rawls’s theory; and third, in the structure and functioning of Rawls’s preferred economic institutions, viz., liberal socialism and property-owning democracy. (shrink)

The first principle of Rawls’s conception of justice secures a set of ‘basic liberties’ equally for all citizens within the constitutional structure of society. The ‘worth’ of citizens’ liberties, however, may vary depending upon their wealth. Against Rawls, Cohen contends that an absence of money often can directly constrain citizens’ freedom and not simply its worth. This is because money often can remove legally enforced constraints on what citizens can do. Cohen’s argument – if modified to apply to citizens’ ‘moral (...) powers’ rather than ‘negative liberty’ – threatens a core feature of Rawls’s conception of justice, as it is unclear why the parties within the ‘original position’ would endorse the lexical priority of the first principle over the ‘difference principle’ if both principles similarly shape citizens’ freedom. I concede Cohen’s point regarding the relation between freedom and money but argue that it is not fatal to Rawls’s conception of justice if the ‘basic needs principle’ is understood to enjoy lexical priority over the first principle and is modified to include a right to adequate discretionary time. Nonetheless, Cohen’s argument helpfully highlights the infelicitous nature of Rawls’s terminology with respect to liberty: the basic needs principle, the first principle and the difference principle all should be understood as shaping citizens’ freedom to exercise their moral powers. (shrink)

An important feature of some recent jurisprudential writings is the tendency to reject the precept of liberal individualism which affirms the priority of the principles of the "right conduct" over the substantive conceptions of "the good". This rejection, explicit in a recent book by Rogers M. Smith, and implicit in a recent work by Guido Calabresi, leads to strikingly illiberal consequences; hence, this provides indirect confirmation that the priority of the right over the good constitutes the most reliable (...) defense of individual liberty against majoritarian oppression. In Smith, an attempt to replace this priority with the principle of "rational liberty" leads to the disappearance of the guarantees of minority rights against orthodox majorities; in Calabresi, the doctrine of weighing and balancing competing moral principles of "the good" fails to provide an explanation for the strongly held moral intuition that some external preferences have to be disqualified at the outset, before they enter the forum of moral bargaining. (shrink)