Rawls on Liberty and Its Priority

Author(s): H. L. A. Hart
Source: The University of Chicago Law Review, Vol. 40, No. 3 (Spring, 1973), pp. 534-555
Published by: The University of Chicago Law Review
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 Rawlson Liberty
and Its Priority
H.L.A. Hartt

I. INTRODUCTORY
No book of politicalphilosophysince I read thegreatclassicsof the
subjecthas stirredmythoughtsas deeplyas JohnRawls'sA Theoryof
Justice.But I shallnot in thisarticleoffera generalassessment of this
importantand mostinteresting work.I shall be concernedwithonly
one of itsthemes,namely,Rawls'saccountof therelationshipbetween
justiceand liberty,and in particularwithhis conceptionthatjustice
requiresthatlibertymayonlybe limitedforthesakeof libertyand not
forthesakeofothersocialand economicadvantages.I havechosenthis
themepartlybecauseofitsobviousimportanceto lawyerswhoare,as it
were,professionally concernedwithlimitationsof libertyand withthe
justiceor injusticeofsuchlimitations. I choosethisthemealso because
thispartof Rawls'sbookhas not,I think,so farreceived,in anyof the
vastnumberof articleson and reviewsof the book whichhave been
published,the detailedattentionwhich it deserves.Yet, as Sidgwick
foundwhenhe considereda somewhatsimilardoctrineascribingprior-
ityto libertyoverothervalues,sucha conceptionofliberty,thoughun-
doubtedlystriking a responsivechordin theheartof anyliberal,has its
bafflingas well as its attractive
aspect,'whichbecomesapparentwhen
we consider,as Rawls intendsthatwe should,whatthe applicationof
thisdoctrinewouldrequirein practice.
Partofwhatfollowsis concernedwitha majorquestionof interpre-
tationof Rawls'sdoctrineand the restis critical.But I am verycon-
sciousthatI mayhave failedto keep constantly in view or in proper
perspectiveall the argumentswhichRawls,at different places in this
long and complexwork,concentrates on the pointswhichI findun-
convincing.I would not thereforebe surprisedif my iinterpretation
could be correctedand mycriticisms answeredby some further expla-
nation which the author could supply. Indeed I do not write to con-
fute,but mainlyin the hope thatin some of the innumerablefuture

t Research Fellow of UniversityCollege, Oxford.

1 H. SIDGWICK, TI-IE METHODSOF ETHICS(7th ed. 1907) Book III, Cli. V, ? 4. "I admit
that it commendsitselfmuch to my mind. . . . But when I endeavour to bring it into
closer relation to the actual circumstancesof human society it soon comes to wiear a
differentaspect."

534

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 Liberty and Its Priority 535

editionsof thisbook Rawls maybe inducedto add someexplanationof

thesepoints.
I hope thatI can assumethatby now themain featuresof Rawls'sA
Theory of Justiceare familiarto mostreaders,but forthoseto whomit
is not,the followingis a minimumaccountrequiredto make thisarti-
cle intelligible.
First,thereis whatRawls termsthe "Main Idea." This is the striking
claim thatprinciplesofjusticedo notreston mereintuitionyetare not
to be derived fromutilitarianprinciplesor any other teleological
theoryholdingthatthereis some formof good to be soughtand maxi-
mised. Instead,the principlesof justice are to be conceivedas those
thatfreeand rationalpersonsconcernedto furthertheirown interests
would agreeshould governtheirformsof social lifeand institutions if
theyhad to choose such principlesfrombehind "a veil of ignorance"
-that is, in ignoranceof theirown abilities,of theirpsychological
pro-
pensitiesand conceptionof the good, and of theirstatusand position
in societyand the level of developmentof thesocietyof whichtheyare
to be members.The positionof thesechoosingpartiesis called "the
originalposition."Many discussionsof the validityof this Main Idea
have alreadyappearedand it will continueto be muchdebatedby phi-
losophers,but forthe purposesof this articleI shall assumethat if it
could be shownthatthe partiesin the originalpositionwould choose
theprincipleswhichRawls identifies as principlesofjustice,thatwould
be a strongargumentin theirfavour.Fromthe Main Idea Rawls makes
a transitionto a generalformor "generalconception"of the principles
that the partiesin the original positionwould choose. This general
conceptionofjusticeis as follows:
All social values-liberty and opportunity,income and wealth,
and the bases of self-respect-areto be distributedequally unless
an unequal distributionof any,or all, of thesevalues is to every-
one's advantage.2
This generalconceptionof justice,it should be observed,refersto the
equal distributionof libertybut not to its maximisationor extent.
However,mostof the book is concernedwith a special interpretation
of thisgeneralconceptionwhichrefersboth to the maximisationand
theequalityofliberty.The principalfeaturesof thisspecialconception
ofjusticeare as follows:
First Principle ["the principleof greatestequal liberty"]3
Each personis to have an equal rightto the mostextensivetotal
2 P. 62.
3 P. 124.

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536 The University
of ChicagoLaw Review [40:534

systemof equal basiclibertiescompatiblewitha similarsystem

oflibertyforall.
SecondPrinciple
Social and economicinequalitiesare to be arrangedso thatthey
are ... to thegreatestbenefitof theleastadvantaged....4
To these two principlesthereare attachedcertainpriorityrules of
whichthe mostimportantis thatlibertyis given a priorityover all
otheradvantages,so thatit maybe restricted or unequallydistributed
onlyforthesakeof libertyand not foranyotherformof social or eco-
nomicadvantage.
To thisaccounttheremustbe added twopointsspeciallyrelevantto
this article.First,Rawls regardshis two principlesas establishedor
justifiednotsimplyby thefactthattheywould be chosen,as he claims
theywould,by thepartiesin theoriginalposition,but also by thegen-
eral harmonyof theseprincipleswithordinary"consideredjudgments
dulyprunedand adjusted."5The testof his theory, therefore,is in part
whethertheprincipleshe identifies illuminateour ordinaryjudgments
and help to reveala basicstructure and coherenceunderlying them.
Secondly,it is an importantand interesting
featureof Rawls'stheory
thatonce theprinciplesofjusticehave been chosenwe come to under-
standwhattheirimplementation would requireby imagininga four-
stageprocess.Thus, we are to supposethatafterthe firststage,when
thepartiesin theoriginalpositionhavechosentheprinciplesofjustice,
theymove to a constitutional convention.There, in accordancewith
thechosenprinciples, theychoosea constitution
and establishthebasic
rightsor libertiesof citizens.The thirdstage is that of legislation,
wherethejusticeoflawsand policiesis considered;enactedstatutes,if
theyare to be just,mustsatisfy boththelimitslaid downin theconsti-
tutionand the originallychosenprinciplesof justice.The fourthand
laststageis thatof theapplicationofrulesbyjudgesand otherofficials
to particularcases.

II. LIBERTY AND BASIC LIBERTIES

Throughouthis book Rawls emphasisesthe distinctionbetweenlib-

ertyand othersocialgoods,and hisprincipleofgreatestequal libertyis,

4 P. 302. I have here omitted the provisions for a just savings principle and for
equality of opportunity,which Rawls includes in this formulationof his second principle,
since theyare not relevantto the presentdiscussion.
5 P. 20. Rawls, in fact, speaks of a "reflectiveequilibrium" between principles and
ordinaryjudgments,since he envisages that where there are initial discrepanciesbetween
these we have a choice of modifyingthe conditionsof the initial position in which prin-
ciples are chosen or modifyingin detail the judgments.Pp. 20 ff.

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1973] Liberty and Its Priority 537

as I have said, accompanied-in his special conceptionof justiceas dis-

tinctfromhis generalconception-by a priorityrule whichassignsto
liberty,or at leastto certainformsof libertyinstitutionallydefinedand
protected,a priority whichforbidstherestriction of libertyforthesake
of otherbenefits:libertyis only to be restrictedforthe sake of liberty
itself.In thegeneralconceptionofjusticethereis no such priorityrule
and no requirementthatlibertymustbe as extensiveas possible,though
it is to be equally distributedunless an unequal distributionof it is
justifiedas being to everyone'sadvantage.6The special conceptionis
to governsocietieswhichhave developedto the point when,as Rawls
says,"the basic wantsof individualscan be fulfilled"7and social con-
ditionsallow "the effective establishmentof fundamentalrights."8If
thesefavourableconditionsdo not obtain,equal libertymaybe denied,
ifthisis requiredto "raisethelevel of civilizationso thatin due course
thesefreedomscan be enjoyed."9
I findit no easy matter,on some quite crucial points,to interpret
Rawls'scomplexdoctrine,and thereis one initialquestionof interpre-
tationwhichI discusshereat some length.But it is perhapsworthsay-
ing thatto do justiceto Rawls's principleof greatestequal libertyit is
necessaryto take into account not only what he says when expressly
formulating, expounding,and illustrating thisprinciple,but also what
he saysabout someotherapparentlyseparateissues-in particular,nat-
ural duties,10 obligationsarisingfromtheprincipleof fairness,11permis-
sions,12 paternalism,13and the common good or common interest,14for
thesemayapparentlysupplementthe ratherexiguousprovisionforre-
strictionson libertywhich are all that,at firstsight,his principleof
greatestequal libertyseemsto allow.
The initial questionof interpretationarisesfromthe followingcir-
cumstances.Rawls in his book oftenrefersin broad termsto his first
principleofjusticeas "the principleof greatestequal liberty,"'5and in
similarlybroad termsto itsassociatedpriorityrule as therule that"lib-
ertycan be restrictedonly forthe sake of liberty."'16These references

6 P. 62.
7 P. 543.
8 Pp. 152, 542.
9 P. 152.
10 Pp. 114 ff,333 ff.
11 Pp. 108 ff.
12 Pp. 116 ff.
'3 P. 248.
14 Pp. 97, 213, 246.
15 E.g., p. 124.
16 Pp. 250, 302.

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 538 The Universityof Chicago Law Review [40:534

to libertyin quite generalterms,aiid also Rawls'spreviousformulation

in his articlesof thisfirstprincipleas the principlethateveryonehas
"an equal rightto themostextensivelibertycompatiblewitha like lib-
ertyforall,"'7 suggestthathis doctrineis similarto thatcriticizedby
Sidgwick.18 It is probablethatSidgwickhad chiefly in minda formula-
tionof a principleof greatestequal libertyurgedby HerbertSpencer
in his long forgotten Social Statics."9
This was effectivelycriticisedby
Sidgwickas failingto accountforsomeof themostobviousrestrictions
on libertyrequiredto protectindividualsfromharmsotherthancon-
straintor deprivationof liberty,and indeedas forbiddingthe institu-
tionofprivateproperty, sinceto own anything privatelyis to have lib-
erty to use it in waysdeniedto others.Spencerattemptedto get out of
thisdifficulty (or ratheroutsideit) bysimplyswallowingit,and reached
theconclusionthat,at leastin the case of land, onlypropertyheld in
commonby a community would be consistentwith "equal liberty"20
and hencelegitimate.Rawls in his book simplylistswithoutargument
therightto hold personalproperty, but not property in the meansof
production, as one ofthebasicliberties,21though,as I shallarguelater,
he does thisat somecostto thecoherenceof his theory.
Rawls's previousformulationof his general principleof greatest
equal liberty-"everyone has an equal rightto the mostextensivelib-
ertycompatiblewitha like libertyforall"-was thenverysimilarto
thedoctrinecriticisedbySidgwick.But Rawls'sexplicitformulation of
it in his book is no longerin thesegeneralterms.It refersnot to "lib-
erty"but to basicor fundamental liberties,whichare understoodto be
legallyrecognisedand protectedfrominterference. This, withitsprior-
ityrule,as finallyformulated, now runsas follows:
Each personis to have an equal rightto the mostextensivetotal
systemof equal basiclibertiescompatiblewitha similarsystemof
libertyforall. .. .

17 Rawls, Justiceas Fairness,67 PHILOsoPHIcAL REvIEw 164, 165 (1958); see Rawls, The
Sense of Justice,72 PHILOSOPHICAL REVIEW 283 (1963); J. RAWLS, DistributiveJustice,in
POLriTCS,PHILOSOPHY AND SOCIETY 61 (3d Series, Oxford 1967). This formulationin these
articlesshould not be confusedwith the formulationof the "general conception"of justice
in the book. See pp. 3 ff.
18 H. SIDGWICK,supra note 1, Book III, Ch. V., ?? 4-5 and Ch. XI, ? 5.
19 See H. SPENCER, SOCIAL STATICS (1850). Criticismsof Spencer's theoryin termsvery
similar to Sidgwick's criticismswere made by F. W. Maitland in 1 COLLECTED PAPERS
247 (H. Fisher ed. 1911). Maitland treated Spencer's doctrine of equal liberty as
virtuallyidentical with Kant's notion of mutual freedomunder universal lawvexpounded
in the latter'sRechtslehre.I am gratefulto ProfessorB.J. Diggs for pointing out to me
importantdifferences betweenRawls's doctrineof libertyand Kant's conceptionof mutual
freedomunder universallaw.
20 H. SPENCER,supra note 19.
21 P. 61.

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1973] Libertyand Its Priority 539

[L]ibertycan be restricted only forthe sake of liberty.There are

two cases: (a) a less extensivelibertymuststrengthen the totalsys-
temof libertysharedby all; (b) a less than equal libertymustbe
acceptableto thosewiththelesserliberty.22
Even to this,however,forcompleteaccuracya glosson thelastsentence
is needed because Rawls also insiststhat"acceptableto thosewith the
lesserliberty"meansnot acceptablejust on any grounds,but only ac-
ceptablebecauseaffording a greaterprotectionof theirotherliberties.23
The basic libertiesto whichRawls's principlethusrefersare identi-
fiedby the partiesin the originalposition24frombehind the veil of
ignoranceas essentialforthepursuitof theirends,whateverthoseends
turnout to be, and so as determining theformof theirsociety.Not sur-
prisingly,therefore, the basic libertiesare ratherfew in numberand
Rawls givesa shortlist of themwhichhe describesin the index as an
"enumeration,"25 thoughhe warnsus thattheseare whattheyare only
"'roughly speaking."26 They comprisepoliticalliberty,thatis, the right
to voteand be eligibleforpublic office, freedomofspeechand of assem-
bly; libertyof conscienceand freedomof thought;freedomof the per-
son,along withthe rightto hold personalproperty;and freedomfrom
arbitrary arrestand seizure.
Now thequestionof interpretation is whetherRawls'schangeof lan-
guage froma principleof greatestequal libertycouched in quite gen-
eral terms("everyonehas an equal rightto themostextensiveliberty"),
to one referring onlyto specificbasic liberties,indicatesa changein his
theory.Is the principleof libertyin the book still this quite general
principle,so thatunderthepriorityrule now attachedto it no formof
libertymaybe restricted exceptforthe sake of liberty?It is difficult
to
be sure, but my own view on this importantpoint is that Rawls no
longerholds the quite generaltheorywhich appeared in his articles,
perhapsbecause he had met the difficulties pointed out by Sidgwick
and others.There are, I think,severalindications,besidesthe striking
changein language,thatRawls's principleis now limitedto the list of
basic liberties,allowingof courseforhis statementthatthe actual list
he givesis onlyrough.The firstindicationis the factthatRawls does
not findit necessaryto reconcilethe admissionof privatepropertyas a
libertywithanygeneralprincipleof maximumequal liberty,or of "an
equal rightto themostextensiveliberty,"and he avoidsthe difficulties

22 P. 302.
23 P. 233.
24 E.g., "equal liberty of conscience is the only principle that parties in the original
position can acknowledge."P. 207.
25 P. 540.
26 P. 61.

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540 The University
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foundin HerbertSpencer'sdoctrineby givinga new sense to the re-

quirementthattherightto hold property mustbe equal. This senseof
equalityturnson Rawls'sdistinction betweenlibertyand thevalue or
worthof liberty.27 Rawls does not require,exceptin the case of the
politicalliberties(therightto participatein government and freedom
ofspeech),thatbasiclibertiesbe equal in value,or substantially
equal,
so he does not require,in admittingthe rightto propertyas a basic
equal liberty,eitherthatpropertyshould be held in commonso that
everyonecan enjoythe same propertyor thatseparatelyowned prop-
ertyshouldbe equal in amount.That would be to insistthatthevalue
oftherightto property shouldbe equal. Whatis requiredis themerely
formal thattherules28 governing
condition theacquisition,
disposition,
and scope of property rightsshould be the same forall. Rawls'sreply
to the familiarMarxistcriticismthatin thiscase we shall have to say
thatthe beggarand the millionairehave equal propertyrightswould
be to admitthecharge,but to pointout that,in hissystem, theunequal
value of theseequal propertyrightswould be cut down to the point
whereinequalitywould be justifiedby the workingof the difference
principle,accordingto whicheconomicinequalitiesare justifiedonly
iftheyare forthebenefitof theleastadvantaged.29
The second indicationthatRawls's principleof greatestequal lib-
ertyand itspriority rule ("libertycan be restricted
onlyforthesake of
liberty")30is now limitedto the basic libertiesis his carefuland re-
peatedexplanationthat,thoughthe rightto hold propertyis forhim
a "liberty,"thechoicebetweenprivatecapitalismand stateownership
of the meansof productionis leftquite open by the principlesof jus-
tice.31Whetheror not the means of productionare to be privately
owned is somethingwhicha societymust decide in the light of the
knowledgeof its actual circumstances and the demandsof social and
economicefficiency. But, of course,a decisionto limitprivateowner-
ship to consumergoods made on such groundswould resultin a less
extensiveformof libertythanwould obtainif privateownershipcould
be exercisedover all formsof property.Rawls's admissionof this
restriction
as allowableso faras justiceis concernedwould be a glaring
inconsistency if he was stilladvancingthe generalprinciplethatthere
mustbe "an equal rightto themostextensiveliberty,"forthat,under
thepriority rule,wouldentailthatno formoflibertymaybe narrowed

27 Pp. 204, 225 ff.

28 Pp. 63-64.
29 P. 204.
30 P. 302.
31 Pp. 66, 273-74.

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1973] Libertyand Its Priority 541

or limitedforthe sake of economicbenefits,but only forthe sake of

libertyitself.
These considerationssupportverystronglythe interpretation that
Rawls's principleof greatestequal liberty,as it is developed in this
book,is concernedonlywiththe enumeratedbasic liberties,thoughof
course theseare specifiedby him only in broad terms.But I confess
thatthereare also difficulties in thisinterpretation whichsuggestthat
Rawls has not eliminatedaltogetherthe earliergeneraldoctrineof lib-
erty,eventhoughthatearlierdoctrineis not,as I have explainedabove,
reallyconsistentwith Rawls's treatmentof the admissiblelimitations
of the rightof property.For it seemsobvious thatthereare important
formsof liberty-sexual freedomand the libertyto use alcohol or
drugs among them-which apparentlydo not fall withinany of the
roughlydescribedbasic liberties;32 yet it would be verysurprisingif
principlesof justice were silent about their restriction.Since John
StuartMills'sessayOn Liberty,such libertieshave been the stormcen-
tre of discussionsof the properscope of the criminallaw and other
formsof social coercion,and thereis, in fact,just one passage in this
book fromwhichit is clear thatRawls thinksthathis principlesof jus-
ticeare not silentas to thejusticeof restricting such liberties.88
For in
arguing against the view that certain formsof sexual relationship
shouldbe prohibitedsimplyas degradingor shameful,and so as falling
shortof some "perfectionist" ideal, Rawls saysthatwe should relynot
on such perfectionist criteriabut on the principlesof justice and that
accordingto theseno reasonablecase forrestriction can be made out.
There is muchthatI do not understandin thisshortpassage.Rawls
saysherethatjusticerequiresus to show,beforerestricting suchmodes
of conduct,eitherthattheyinterfere with the basic libertiesof others
or that"theyviolatesomenaturaldutyor someobligation."This seems
an unexplaineddeparturefromthe strictline so oftenemphasisedin
the case of basic liberties,thatlibertymay be restrictedonly for the
sake of liberty.Is therethena secondaryset of principlesfornonbasic
32 It has beensuggestedto me thatRawlswouldregardthesefreedoms as basicliberties
fallingunderhis broadcategory of libertyof conscience, whichis concerned notonlywith
religiousbutwithmoralfreedom. But Rawls'sdiscussion ofthis,pp. 205ff,seemsto envisage
onlya man'sfreedom to fulfill
moralobligations as he interprets them,and sexualfreedom
wouldtherefore onlyfallunderthiscategory forthoseto whomthepromptings of passion
presentedthemselves as calls of moralduty.Othershave suggestedthat thesefreedoms
wouldfallunderRawls'scategory of freedomof the person;but thisseemsmostunlikely
to me in viewofhis collocationofit withproperty ("freedom of thepersonalongwiththe
rightto hold personalproperty"). It is to be notedalso thatsexual freedomis spokenof
as a "modeof conduct,"p. 331,and thepossibility with"basicliberties"
of its interference
(not"other"basicliberties)is mentioned.
33 P. 331.

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542 The Universityof Chicago Law Review [40:534

liberties?This solutionwould have its own difficulties. The natural

dutiesto whichRawls refershere,and the principlefromwhichobli-
gations,suchas theobligationto keep a promise,derive,are,according
to Rawls,standardsof conductforindividuals whichthepartiesin the
originalpositionhave gone on to choose aftertheyhave chosenthe
principlesofjusticeas standardsforinstitutions,whichI takeit include
the law. If libertymaybe restricted to preventviolationof any such
naturaldutiesor obligations,thismayratherseverlynarrowthe area
of liberty,forthenaturaldutiesincludethedutyto assistotherswhen
thiscan be doneat smallcostand thedutyto showrespectand courtesy,
not to harmthe innocent,
as well as dutiesto supportjust institutions,
and notto causeunnecessary suffering.Further,sincethepartiesin the
originalpositionare said to choosetheprinciplesofjusticeas standards
forinstitutions beforetheychoosethenaturaldutiesforindividuals,it
is notclearhowtheformer can incorporatethelatter,as Rawlssuggests
theydo whenhe saysthatprinciplesof justicerequireus to show,be-
forewe restrict conduct,thatit violateseitherbasiclibertiesor natural
dutiesor obligations.
I hope thatI havenotmade toomuchofwhatis a merepassingrefer-
ence by Rawls to libertieswhichdo not appear to fallwithinhis cate-
goriesof basic liberties,but have been at the centreof some famous
discussions offreedom.I cannot,however,fromthisbooksee quite how
Rawls would resolvethe difficulties I have mentioned,and I raise be-
low the relatedquestionwhetherlibertieswhichare plainly"basic"
may also be restrictedif theirexerciseinvolvesviolationof natural
dutiesor obligations.

III. LIMITING LIBERTY FOR THE SAKE OF LIBERTY

I turn now to considerthe principlethat basic libertiesmay be

limitedonlyforthe sake of liberty.Rawls expressesthisprinciplein
severaldifferent ways.He saysthatbasic libertiesmaybe restricted or
unequallydistributed onlyforthe sake of a greater"systemof liberty
as a whole";34thattherestriction mustyield"a greaterequal liberty,"35
or "the best totalsystemof equal liberty"36 or "strengthen" thatsys-
tem,37 or be "a gain for... freedomon balance."38
What,then,is it to limitlibertyforthesakeof liberty? Rawls givesa
numberof exampleswhichhis principlewould permit.The simplest

34 P. 203.
35 P. 229.
36 P. 203.
37 P. 250.
38 P. 244.

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1973] Liberty and Its Priority 543

case is the introductionof rulesof orderin debate,89whichrestrictthe

libertyto speakwhenwe please. Withoutthisrestriction the libertyto
sayand advocatewhatwe please would be grosslyhamperedand made
less valuable to us. As Rawls says,such rules are necessaryfor"profit-
able"40discussion,and plainlywhen such rules are introduceda bal-
ance is struckand the libertyjudged less importantor less valuable is
subordinatedto the other.In thisverysimplecase thereseemsto be a
quite obvious answerto the questionas to whichof the two liberties
hereconflicting is morevaluable since,whateverends we are pursuing
in debate,the libertyto communicateour thoughtin speechmustcon-
tributemore to theiradvancementthan the libertyto interruptcom-
munication.It seemsto me, however,misleadingto describeeven the
resolutionof the conflicting libertiesin thisverysimplecase as yield-
ing a "greater"or "stronger"totalsystemof liberty,forthesephrases
suggestthatno values otherthanlibertyand dimensionsof it, like ex-
tent,size, or strength,are involved.Plainly what such rules of debate
help to secureis not a greater or more extensiveliberty,but a liberty
to do somethingwhichis more valuable forany rationalpersonthan
the activitiesforbiddenby the rules,or, as Rawls himselfsays,some-
thingmore"profitable."So somecriterionof the value of different lib-
ertiesmustbe involvedin theresolutionofconflicts betweenthem;yet
Rawls speaksas if the system"of basic liberties"were self-contained,
and conflicts withinit wereadjustedwithoutappeal to any othervalue
besideslibertyand itsextent.
In somecases,it is true,Rawls's conceptionof a greateror moreex-
tensivelibertyresultingfroma moresatisfactory resolutionof conflicts
betweenlibertiesmay have application.One fairlyclear example is
providedby Rawls when he saysthatthe principleof limitingliberty
only forthe sake of libertywould allow conscriptionformilitaryser-
vice in a wargenuinelyundertakento defendfreeinstitutions eitherat
home or abroad.41 In thatcase it mightplausiblybe said thatonly the
quantumor extentof libertywas at stake;the temporary restriction of
libertyinvolvedin militaryconscriptionmightbe allowed to prevent
or removemuch greaterinroadson liberty.Similarly,the restriction
imposedin thename ofpublic orderand security, to whichRawls often
refers,42may be justifiedsimplyas hinderinggreateror more exten-
sive hindrancesto libertyof action.But therecertainlyare important
cases of conflictbetweenbasic libertieswhere,as in the simplerules of

39 P. 203.
40 Id.
41 P. 380.
42 Pp. 97, 212-13.

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544 The Universityof Chicago Law Review [40:534

debatecase,theresolutionofconflict mustinvolveconsideration of the

relativevalue of differentmodesofconduct,and not merelytheextent
or amountof freedom.One such conflict, which,accordingto Rawls's
four-stage sequence,will have to be settledat a stageanalogousto a
constitutional convention,is the conflictbetweenfreedomof speech
and of theperson,and freedomto participatein government througha
democratically electedlegislature.43
Rawls discussesthisconflicton the
footingthat the freedomto participatein government is to be con-
sideredas restricted if thereis a Bill of Rightsprotecting the individ-
ual's freedomofspeechor ofthepersonfromregulationbyan ordinary
majorityvote of the legislature.He saysthatthe kind of argumentto
supportsucha restriction, whichhis principlesof justicerequire,is "a
justificationwhichappealsonlyto a greaterequal liberty."44 He admits
thatdifferent opinionsabout the value of the conflicting libertieswill
affectthe way in whichdifferent personsview thisconflict.Nonethe-
less,he insiststhatto arriveat a just resolutionof theconflict we must
tryto findthepointat which"the dangerto libertyfromthemarginal
loss in controloverthoseholdingpoliticalpowerjust balancesthe se-
curityof libertygained by the greateruse of constitutional devices."45
I cannotmyselfunderstand, however,howsuchweighingor striking of
a balanceis conceivableiftheonlyappeal is,as Rawlssays,to "a greater
liberty."
These difficulties
in thenotionof a greatertotalliberty, or systemof
liberty,resultingfromthe just resolutionof conflictbetweenliberties,
are mademoreacuteforme byRawls'sdescription of thepointof view
fromwhichhe saysall suchconflicts betweenlibertiesare to be settled
-whether theyoccurat theconstitution makingstageof thefour-stage
sequence,as in thecase lastconsidered,or at thestageof legislationin
relationto othermatters.
Rawls saysthatwhenlibertiesconflict theadjustmentwhichis to se-
cure"thebesttotalsystem"is to be settledfromthestandpointof "the
representative equal citizen,"and we are to ask whichadjustment"it
wouldbe rationalforhimto prefer."46 This, he says,involvestheappli-
cationof theprincipleof thecommoninterestor commongood which
selectsthoseconditionswhichare necessaryfor"all to equally further
theiraims"or whichwill "advancesharedends."47It is, of course,easy
to see that verysimple conflictsbetweenliberties,such as the de-

43 Pp. 228-30.
44 P. 229.
45 P. 230.
46 P. 204.
47 P. 97.

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1973] Liberty and Its Priority 545

bating rules case, may intelligiblybe said to be settledby reference

to this point of view. For in such simple cases it is certainlyargu-
able that,whateverends a man may have, he will see as a rational
being that the restrictions are required if he is to pursue his ends
successfully,and this can be expressedin terms of "the common
good" on the footing that such restrictionsare necessaryfor all
alike. But it would be quite wrong to generalizefromthis simple
case; otherconflictsbetweenbasic libertieswill be such thatdifferent
resolutionsof the conflictwill correspondto the interestsof different
people who will divergeoverthe relativevalue theyset on the conflict-
ing liberties.In such cases,therewill be no resolutionwhich will be
uniquelyselectedbyreferenceto thecommongood. So, in theconstitu-
tional case discussedabove, it seems difficult to understandhow the
conflictcan be resolvedby referenceto the representative equal citi-
zen, and withoutappeal to utilitarianconsiderationsor to some con-
ceptionof whatall individualsare morallyentitledto have as a matter
of human dignityor moral right.In particular,the general strategy
whichRawls ascribesto the partiesin the originalpositionof choosing
the alternativethatyieldsthe best worstpositionis no help exceptin
obvious cases like the debatingrules case. There, of course,it can be
arguedthatit is betterto be restrictedby reasonablerules than to be
exposed to unregulatedinterruption, so thatit is rationalto tradeoff
the libertyto speak when you please forthe more valuable benefitof
beingable to communicatemoreor lesseffectively whatyou please. Or,
to put the same exceedinglysimple point in the "maximin" terms
which Rawls oftenilluminatinglyuses, the worstpositionunder the
rule (being restrainedfrominterruption but given time to speak free
frominterruption)is betterthan the worstpositionwithoutthe rule
(beingconstantly exposedto interruption thoughfreeto interrupt).
Such simplecases,indeed,existwhereit can be said thatall "equal
citizens,"howeverdivergenttheirindividual tastesor desires,would,
if rational,preferone alternativewherelibertiesconflict.But I do not
understandhow thenotionof therationalpreference of therepresenta-
in
tiveequal citizencan assist the resolutionof conflicts wherereason-
able men maydifferas to thevalue of conflicting liberties,and thereis
no obviouslybestworstpositionwhicha rationalman would prefer.It
is truethatat thestagesin the four-stage sequencewheresuchconflicts
have to be resolvedthereis no veil of ignoranceto preventthosewho
have to take decisionsknowingwhat proportionsof the population
favourwhichalternatives. But I do not thinkRawls would regardsuch
knowledgeas relevantin argumentsabout what it would be rational
fortherepresentative equal citizento prefer;forit would onlybe rele-

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546 The Universityof Chicago Law Review [40:534

vantif we conceivethatthisrepresentative figurein some wayreflects

(perhapsin therelativestrength or intensityof his conflicting desires)
the distributionof different preferencesin the population.This, how-
ever,would be virtuallyequivalentto a utilitariancriterionand one
thatI am sure is farfromRawls'sthoughts.I would stresshere thatI
am notcomplainingthatRawls'sinvocationof "therationalpreference
of the representative equal citizen"fails to providea decisionproce-
dureyieldinga determinate answerin all cases.Rather,I do not under-
stand,exceptin the verysimplecases,whatsortof argumentis to be
used to show what the representative's rationalpreferencewould be
and in whatsenseit resultsin "a greaterliberty."
Of course,it is open to Rawls to say,as he does,thatarguments con-
cerningthe representative's rationalpreference will oftenbe equally
balanced,and in suchcasesjusticewill be indeterminate. But I do not
thinkthathe can mean thatjustice is to be indeterminate whenever
differentpeople value alternativesdifferently.Indeed,he is quite clear
that,in spiteof such difference in valuation,justicedoes requirethat
therebe someconstitutional protectionsforindividualfreedom, though
thesewill limitthe freedomto participatein government;48 the only
indeterminacy he contemplates hereis as to theparticularformof con-
stitutionalprotectionto be selectedfroma rangeof alternatives all of
whichmaybe permittedby principlesof justice.Yet, if opinionis di-
vided on the main issue (thatis, whetherthereshould be any or no
restrictions
on legislativepowerto protectindividualfreedom), I do not
understand whatsortofargumentit is thatis supposedto showthatthe
representativeequal citizenwould preferan affirmative answeron this
mainissueas securing"thegreaterliberty."
This difficultystillplaguesme even in relativelyminorcases where
one mightwell accepta conclusionthatprinciplesof justiceare inde-
terminate.Thus, supposethe legislatorhas to determinethe scope of
the rightsof exclusioncomprisedin the privateownershipof land,
whichis forRawlsa basicliberty,49 whenthisbasiclibertyconflicts with
others.Somepeoplemaypreferfreedomofmovement not to be limited
48 "The libertiesof equal citizenshipmustbe incorporated into and protectedby the
constitution." libertyof conscience
P. 197."If a bill of rightsguaranteeing and freedom
of thought and assembly wouldbe effective thenit shouldbe adopted."P. 231.
49 It has beensuggested to me by Mr. MichaelLesnoff thatRawlsmightnot consider
theprivateownership ofland to be a basiclibertysince,as notedabove,justiceaccording
to Rawlsleavesopen thequestionwhetherthereis to be privateownership of themeans
of production.I am not,however, clearwhatis includedin thescopeof thebasicliberty
whichRawls describedas "the rightto hold [personal]property." P. 61. Would it
compriseownershipor (in a socializedeconomy)a tenancyfromthe state in land to
be usedas a garden?If not,theexamplein thetextmightbe changedto thatof a conflict
betweenpedestrians' freedom of movement and therightsof automobiles.

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1973] Liberty and Its Priority 547

by the rightsof landownerssupportedby laws about trespass;others,

whethertheyare landownersor not,maypreferthattherebe somelim-
If justiceis indeterminate
itatioVis. in thisminorcase of conflicting lib-
erties,thenno doubt we would fall back on what Rawls termsproce-
dural justice,and accept the majorityvote of a legislatureoperating
undera just constitution and a fairprocedure,even if we cannotsayof
the outcomethatit is in itselfa just one. But, presumably, in consider-
ing what measuresto promoteand how to vote, the legislatorsmust,
since thisis a case, thougha minorone, of conflicting basic liberties,
begin by askingwhichof the alternatives a representativeequal citizen
would,ifrational,prefer,even if theyare doomed to discoverthatthis
questionhas no determinateanswer.But indeterminacy and unintelli-
gibilityare different things,and it is the intelligibility
of the question
withwhichI am concerned.What do the legislatorsmean in such cases
whentheyask whichalternativeit would be rationalfortherepresenta-
tive equal citizento preferas securingthe greaterliberty,when they
knowthatsomemen mayvalue privacyof propertymorethanfreedom
ofmovement, and othersnot?If thequestionis rephrased,as Rawls says
it can be, as a question involvingthe principleof the commongood,
thenit will presumablyappear as thequestionwhichalternativewill in
the long run mostadvancethe good of all, or ends thatall share.This
mightbe an answerablequestionin principleifit could be takensimply
as the questionwhichalternativeis likelymostto advance everyone's
generalwelfare,wherethisis takento include economicand otherad-
vantagesbesides liberty.If, for example,it could be shown that un-
restrictedfreedomof movementoverland would tend to reduceevery-
one's foodsupply,whereasno bad consequenceslikelyto affect everyone
would resultfromthe otheralternative,thenthe conflictshould be re-
solvedin favourof restriction of movement.But thisinterpretation of
the questionin termsof welfareseemsruled out by the principlethat
libertymayonlybe limitedforthesake of liberty,and not forsocial or
economicadvantages.So, I think,that the conceptionof the rational
choiceof therepresentative equal citizenneeds furtherclarification.

IV. LIMITING LIBERTY TO PREVENT HARM OR SUFFERING

I now turnto the questionwhetherthe principleof limitingliberty

onlyforthesake of libertyprovidesadequatelyforrestrictions on con-
ductwhichcausespain or unhappinessto othersotherwisethanby con-
straininglibertyof action.Such harmfulconductin some cases would
be an exerciseof the basic liberties,such as freedomof speech,forex-
ample,or theuse ofproperty, thoughin othercasesit maybe the exer-
cise ofa libertynot classedby Rawls as basic. It would be extraordinary

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548 The Universityof Chicago Law Review [40:534

if principlesof justicewhichRawls claimsare in generalin harmony

withordinaryconsideredjudgmentswereactuallyto exclude (because
theylimitedlibertyotherwise thanforthesakeofliberty)lawsrestrain-
ing libel or slander,or publicationsgrosslyinfringing privacy,or re-
strictions on theuse of privateproperty (e.g.,automobiles)designedto
protecttheenvironment and generalsocialamenities.These restrictions
on the basic libertiesof speech and privatepropertyare commonly
acceptedas trade-offs not of libertyforliberty,but of libertyforpro-
tection from harm or loss ofamenitiesor otherelementsofreal utility.
There are twowaysin whichperhapsRawls'sprinciplescan at least
partlyfillthisgap.50In somecasesmoreplausiblythanothers,he might
arguethatan unrestricted libertyto inflictwhatwe call harmor suffer-
ing on otherswould in factrestrictthe victim'slibertyof action in
eitheror bothoftwvo ways.The physicalinjuryinflicted mightactually
impairthe capacityforaction,or theknowledgethatsuch harmfulac-
tionswerenot prohibitedmightcreateconditionsof apprehensionand
uncertainty amongpotentialvictimswhichwould grosslyinhibittheir
actions.But sucharguments seem quite unplausibleexceptin casesof
conductinflicting seriousphysicalharmon individuals,and eventhere,
whensuchrestrictions are acceptedas a reasonablesacrificeof liberty,
it seemsclear thatif pain and suffering and distresswere not givena
weightindependentof the tendencyof harmfulconductto inhibitthe
victim'sactionsor incapacitatehim fromaction,the balancewould of-
ten,in fact,not be struckas it is.
It is,however,necessary at thispointagain to takeintoaccountthose
naturaldutieswhichare standardsof individualconduct,as distinct
fromprinciplesof justice,whichare standardsforinstitutions. These
dutiesincludethedutynotto harmothersor cause "unnecessary suffer-
ing" and also thedutyto cometo theassistanceof others.In discussing
the acceptanceof such dutiesby the partiesin the originalposition,
Rawls represents themas calculatingthatthe burdensof such duties
will be outweighedby the benefits;5" so naturaldutiesrepresentcases

50 ProfessorDworkin and Mr. Michael Lesnoffhave suggested to me that what I

describe here as a "gap" may not in fact exist, since Rawls's basic liberties may be con-
ceived by him as limited ab initio so that theydo not include the libertyto act in a way
damaging to the interestsor libertiesof others. But though it is certainlyconsistentwvith
much of Rawls's discussionof basic liberties to treat his admittedlyrough descriptionof
themas simplyindicatingareas of conductwithinwhich the partiesin the original position
identifyspecificrightsafterresolvingconflictsbetweenthe severallibertiesand the interests
or libertiesof others,this does not fitwith Rawls's account of the basic libertiesas liable
to conflict,nor with his account of the conflictsas resolved not by the parties in the
original position but by constitutionalconvention or body of legislators adopting the
point of view of the representativeequal citizen.
51 P. 338.

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1973] Liberty and Its Priority 549

where,like the simplerules of debate case, the best worstpositionfor

all rationalmen can be identified, and in thesecases even frombehind
theveil ofignorance.Even thereit will appear to thepartiesas rational
self-interestedpersonsthat it is, for example,betterto be restrained
frompractisingcrueltyto otherswhileprotectedfromthemthan to be
exposedto others'crueltywhilefreeto practiseit,and betterto have to
providemodestassistanceto othersin need than never to be able to
relyon such assistancebeing forthcoming. So it is plain thatthesenat-
ural dutiesmightfillpartof thegap leftopen by theprinciplethatlib-
ertymayonlybe limitedforthesake ofliberty,ifRawls means(though
he does not explicitlysay it) that even the basic libertiesmay be re-
strictedif theirexercisewould infringeany natural duty.But again,
thesenaturalduties chosen frombehind the veil of ignorancewould
onlyaccountforveryobviouscaseswherethebenefitsof therestrictions
would, forall rationalmen, plainlyoutweighthe burdens.This will
nothelpwheredivergentchoicescould reasonablybe made by different
individualsin the lightof theirdifferent interests, and it seemsto me
thatthiswill veryoftenbe the case. Some persons,giventheirgeneral
temperament, mightreasonablypreferto be freeto libel othersor to
invadetheirprivacy,or to make use of theirown propertyin whatever
styletheylike,and mightgladlytaketheriskof beingexposedto these
practiceson thepartofothersand to theconsequencesof suchpractices
forthemselvesand the generalsocial and physicalenvironment. Other
personswould not pay thisprice forunrestricted libertyin thesemat-
ters,since,giventheirtemperament, theywould value the protections
afforded bytherestrictions higherthantheunrestricted liberty.In such
casesrestrictions on thebasiclibertiesofspeechor privateproperty can-
not be representedas a matterof naturaldutyon the footingthatra-
tional men,whatevertheirparticulartemperament, would opt forthe
restrictionsjust as theymightopt forgeneralrestrictions on killingor
theuse of violence.
Of course,it is certainlyto be rememberedthatjustice for Rawls
does not exhaustmorality;thereare, as he tells us, requirements, in-
deed duties,in relationto animalsand even in relationto the restof
naturewhichare outsidethe scope of a theoryof justice as a theoryof
whatis owed to rationalindividuals.52 But even if thereare such moral
duties,regardingevenrationalbeings,I do not thinkthatRawls would
considerthemas supplementingprinciplesof justice which apply to
I take it, therefore,
institutions. thatrestrictions on the basic liberties
excluded by the principlesof justice because theyare not restrictions
of libertyforthesake of libertycould not be independently supported
52 P. 512.

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550 The Universityof Chicago Law Review [40:534

as just byappeal to otherprinciplesof morality.The pointhereis not

that Rawlsian justice will be shown to be indeterminate at certain
pointsas to thepropriety of certainrestrictions on liberty;it is, on the
contrary, all too determinate since theyseem to exclude such restric-
tionsas actuallyunjustbecause theydo not limitlibertyonlyforthe
sake of liberty.I take it Rawls would not wish to meet thispoint by
simplyaddingto his principlesof justicea further supplementpermit-
tinglibertyto be restricted if its exerciseviolatednot onlythe natural
dutiesbutanyrequirements ofmorality, forthiswould,it seemsto me,
run counterto thegeneralliberaltenorof his theory.

V. THE CHOICE OF BASIC LIBERTIES

I thinkthe mostimportant generalpointwhichemergesfromthese
separatecriticisms is as follows.Anyschemeprovidingforthe general
distribution in societyof libertyof actionnecessarilydoes two things:
first,it conferson individualsthe advantageof thatliberty,but sec-
ondly,it exposesthemto whateverdisadvantages the practicesof that
libertyby othersmayentailforthem.These disadvantages includenot
only the case on whichRawls concentrates, namelyinterference with
anotherindividual'sbasicliberties,but also thevariousformsof harm,
pain, and suffering againstwhichlegal systemsusuallyprovideby re-
strictive rules.Such harmmayalso includethedestruction of formsof
social lifeor amenitieswhichotherwisewould have been available to
the individual.So whetheror not it is in anyman's interestto choose
that any specificlibertyshould be generallydistributeddepends on
whethertheadvantagesforhimof theexerciseof thatlibertyoutweigh
thevariousdisadvantages forhimof itsgeneralpracticeby others.I do
not thinkRawls recognisesthis adequatelyin his discussionof con-
flicting libertiesand his theoryof naturalduties.His recognitionis in-
adequate,I think,becausehis doctrineinsiststhatlibertycan onlybe
limitedforthe sake of liberty,and thatwhen we resolveconflicts we
mustbe concernedonlywiththeextentor amountofliberty.This con-
cealsthecharacter oftheadvantagesand disadvantages ofdifferent sorts
whichmustbe involvedin theresolutionofsuchconflicts; and his doc-
trinealso leads him to misrepresent the characterof all except those
mostsimpleconflicts betweenlibertyand otherbenefitswhichare re-
solved by the partiesin the originalpositionwhen theychoose the
natural duties. Throughout,I think,Rawls fails to recognisesuffi-
cientlythata weighingof advantageand disadvantagemustalwaysbe
requiredto determinewhetherthegeneraldistribution of any specific
libertyis in a man'sinterest, sincetheexerciseof thatlibertyby others

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1973] Liberty and Its Priority 551

mayoutweightheadvantagesto him of his own exerciseof it. A rather

startlingsignthatthisis ignoredappearsin Rawls'sremarkthat"from
the standpointof the originalposition,it is rational"formen to want
as largea shareas possibleof liberty,since "theyare not compelledto
acceptmoreiftheydo notwishto,nordoes a personsuffer froma greater
liberty."53 This I findmisleadingbecause it seems to miss the vital
point that,whateveradvantageforany individualtheremaybe in the
exerciseof some libertytakenin itself,thismay be outweighedby the
disadvantages forhiminvolvedin thegeneraldistribution ofthatliberty
in the societyof whichhe is a member.
The detailedcriticisms whichI have made so farconcerntheapplica-
tion of Rawls'sprincipleofgreatestequal liberty.But thegeneralpoint
made in thelastparagraph,if it is valid,affects not merelythe applica-
tionof theprinciplesofjusticeonce theyhave been chosenbut also the
argumentwhichis designedto showthatthepartieswould in thecondi-
tionsof the originalposition,as rationalself-interestedpersons,choose
the basic libertieswhich Rawls enumerates.Even if we assume with
Rawls that everyrationalpersonwould preferas much libertyas he
can get ifno priceis to be paid forit,so thatin thatsenseit is truethat
no one "suffers froma greaterliberty,"it does not followthata liberty
whichcan onlybe obtainedby an individualat the priceof its general
distributionthroughsocietyis one that a rationalpersonwould still
want. Of course,Rawls's natural duties representsome obvious cases
whereit can fairlybe said thatany rationalpersonwould prefercer-
tain restrictionsto a generalisedliberty.In other,less simple cases,
whetherit would be rationalto preferlibertyat the costof othershav-
ing it too must depend on one's temperamentand desires.But these
are hiddenfromthe partiesin the originalpositionand, thisbeingso,
I do not understandhow theycan make a rationaldecision,in termsof
self-interest,to have the variouslibertiesat the cost of theirgeneral
distribution.Opting for the most extensivelibertyfor all cannot, I
think,be presentedas alwaysbeingthe bestinsuranceagainsttheworst
in conditionsof uncertainty about one's own temperament and desires.

VI. THEF ARGUMENT FOR THE PRIORITY OF LIBERTY

I will end by explaininga difficulty

whichI findin the main argu-
mentwhichRawls uses to showthatthe priorityof libertyprohibiting
exchangesof libertyforeconomicor othersocial advantagesmust be
included among the requirementsof justice. Accordingto Rawls's
theory, partiesin theoriginalpositionchoose
therational,self-interested

53 P. 143.

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552 The Universityof Chicago Law Review [40:534

thispriority rulefrombehindtheveil ofignoranceas partofthespecial

conceptionofjustice,but theychooseit on thefootingthatthe rule is
not to comeintoplayunlessor untilcertainfavourablesocial and eco-
nomicconditionshave actuallybeen reachedin the societyof which
theywill be members.These favourableconditionsare identifiedas
thosewhichallow the effective establishment and exerciseof the basic
liberties,54and whenbasic wantscan be fulfilled.55 Until thispointis
reachedthe generalconceptionof justiceis to governthe society,and
menmaygiveup libertiesforsocialand economicgainsif theywish.
I do not thinkthatRawls conceivesof the conditionswhichbring
thepriority ruleintoplayas a stageofgreatprosperity.56 At anyrate,it
is quite clear thatwhenthisstageis reachedtheremaystillbe in any
societypeople who wantmorematerialgoodsand would be willingto
surrendersome of theirbasic libertiesto get them.If materialpros-
perityat thisstagewereso greatthattherecould thenbe no such peo-
ple, the priorityrule thenbroughtinto operationcould not function
as a prohibitory rule,fortherewould be nothingforit to rule out. As
Rawls says,we need not thinkof thesurrenderof libertieswhichmen
mightstill be willingto make for greatereconomicwelfarein very
extremeterms,such as the adoptionof slavery.57 It mightbe merely
thatsomemen,perhapsa majority, perhapsevenall, in a societymight
wishto surrender certainpoliticalrightstheexerciseofwhichdoes not
appear to themto bringgreatbenefits, and would be willingto let
government be carriedon in someauthoritarian formifthereweregood
reasonsforbelievingthatthiswould bringa greatadvancein material
prosperity. It is thiskindof exchangewhichmen mightwishto make
thatthepriority rule forbidsonce a societyhas reachedthe quite mod-
eststagewherethebasiclibertiescan be effectively establishedand the
basicwantssatisfied.

54 P. 152.
55Pp.542-43.
56 It is plain thatunderthisidentification the conditionsforthe applicationof the
specialconception of justicemaybe reachedat verydifferent levelsof materialprosperity
in differentsocieties. Thus, in a smallagrariansocietyor in a societylongused to hard
conditions, men mightbe capableof establishing and exercising politicallibertiesat a
muchlowerstandardof livingthanwouldbe possibleforinhabitants of a large,modern
industrial society.But in viewof the factthatRawlsdescribesthe relevantstageas one
whereconditions merely"allow" or "admit"the effective establishment and realisation
ofbasicliberties, it is notclearto me whetherhe wouldconsiderthespecialconception of
justiceapplicableto a verywealthysocietywhere,owingto the unequal distribution of
wealth,povertyprevented considerablenumbersfromactuallyexercising the basic lib-
erties.Wouldit be unjustforthepoorin sucha societyto supportan authoritarian form
of government to advancetheirmaterialconditions?
57 P. 61.

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1973] Libertyand Its Priority 553

Why thenshould thisrestrictive priorityrule be acceptedas among

the requirementsof justice?Rawls's main answerseemsto be that,as
the conditionsof civilisationimprove,a point will be reachedwhen
fromthestandpointof the originalposition,"it becomesand thenre-
mains . . . irrational to acknowledge a lesser liberty for the sake of
greater material means . ..." because, "as the general level of
well-beingrises,only the less urgentmaterialwantsremain"58to be
satisfiedand men come increasingly to prizeliberty."The fundamental
interestin determiningour plan of life eventuallyassumes a prior
place" and "the desire forlibertyis the chiefregulativeinterestthat
the parties[in theoriginalposition]mustsupposetheyall will have in
commonin due course."59These considerations are takento show the
rationality, fromthe standpointof the partiesin the originalposition,
ofrankinglibertyovermaterialgoods,represented by thepriorityrule.
The core of this argumentseems to be that it is rational for the
partiesin the originalposition,ignorantas theyare of theirown tem-
peramentsand desiresand the conditionsof the societyof whichthey
are to be members,to imposethisrestriction on themselves prohibiting
exchangesof libertyforothergoods because "eventually"or "in due
course" in the developmentof thatsocietythe desire forlibertywill
actuallycometo havea greaterattractionforthem.But it is not obvious
to me whyit is rationalformen to imposeon themselvesa restriction
againstdoingsomethingtheymaywant to do at some stagein the de-
velopmentof theirsocietybecause at a laterstage("eventually"or "in
due course")theywould not wantto do it. There seemsno reasonwhy
a surrenderofpoliticallibertieswhichmen mightwantto make purely
fora large increasein materialwelfare,whichwould be forbiddenby
the priorityrule, should be permanentso as to preventmen, when
greataffluence is reached,restoringthelibertiesif theywishedto do so;
it is not as ifmen would run the risk,if therewereno priorityrule,of
permanentlylosing libertieswhich later theymightwish to have. I
think,however,thatprobablyRawls'sargumentis reallyof the follow-
ing form,whichmakesuse again of the idea thatundercertaincondi-
tionsof uncertainty rationalbeingswould opt forthealternativewhose
worstconsequenceswould be leastdamagingto one's intereststhanthe
worstconsequencesof otheralternatives. Since the partiesin the orig-
inal positiondo not know the stage of developmentof theirsociety,
theymust,in consideringwhetherto institutea priorityrule prohibit-
ing exchangesof libertyforeconomicgoods,ask themselveswhich of
the followingalternatives, A or B is least bad:
r8 P. 542.
59 P. 543 (emphasisadded).

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554 The Universityof Chicago Law Review [40:534

A. If thereis no priority
rule and politicallibertieshave been sur-
renderedin orderto gain an increasein wealth,theworstposition
is thatofa mananxiousto exercisethelostlibertiesand who cares
nothingfortheextrawealthbroughthimbysurrender.
B. If thereis a priorityrule, the worstpositionwill be thatof a
personlivingat the bottomeconomiclevel of society,just pros-
perousenoughto bringthe priority rule into operation,and who
would gladlysurrender thepoliticallibertiesfora greateradvance
in material prosperity.
It must,I think,be partof Rawls'sargumentthatforanyrationalself-
interestedpersonB is the bestworsepositionand forthatreasonthe
partiesin theoriginalpositionwould chooseit. I am not surethatthis
is Rawls'sargument, but ifit is,I do notfindit convincing.For it seems
to me thathere again the partiesin the originalposition,ignorantas
theyare of thecharacterand strength of theirdesires,just cannotgive
anydeterminate answerif theyask whichof thepositions,A or B, it is
then,in theirconditionof ignorance,mostin theirinterests to choose.
When theveil ofignoranceis liftedsomewill preferA to B and others
B to A.
It maybe thata bettercasealongtheline ofargument just considered
could be madeout forsomeofthebasicliberties,forexample,religious
freedom, thanforothers.It mightbe said thatanyrationalpersonwho
understoodwhatit is to havea religiousfaithand to wishto practiseit
would agree that forany such personto be preventedby law from
practisinghis religionmustbe worsethanfora relativelypoor man to
be preventedfromgaininga greatadvancein materialgoods through
the surrenderof a religiouslibertywhichmeantlittleor nothingto
him.But even if thisis so, it seemsto me thatno general priority rule
forbidding theexchange,evenfora limitedperiod,of anybasic liberty
whichmenmightwishto makein orderto gain an advancein material
prosperity, can be supportedby thisargumentwhichI have ascribed,
possiblymistakenly, to Rawls.
I thinkthe apparentlydogmaticcourseof Rawls'sargumentforthe
priorityof libertymaybe explainedby the factthat,thoughhe is not
offering it merelyas an ideal,he doesharboura latentideal ofhis own,
on whichhe tacitlydrawswhen he representsthe priorityof liberty
as a choicewhichthepartiesin theoriginalpositionmust,in theirown
interest, make as rationalagentschoosingfrombehind the veil of ig-
norance.The ideal is thatof a public-spirited citizenwho prizespolit-
ical activityand serviceto othersas amongthe chiefgoodsof lifeand
could not contemplateas tolerablean exchangeof the opportunities
forsuch activityformere materialgoods or contentment. This ideal

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1973] Libertyand Its Priority 555

powerfullyimpregnatesRawls's book at many points which I have

been unable to discusshere. It is, of course,among the chiefideals of
Liberalism,but Rawls's argumentforthe priorityof libertypurports
not on ideals,and to demonstratethatthe general
to reston interests,
priorityof libertyreflectsa preferencefor libertyover other goods
whicheveryself-interested personwho is rationalwould have. Though
his argumentthrowsmuchincidentallighton therelationshipbetween
libertyand othervalues,I do notthinkthatit succeedsin demonstrating
itspriority.

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