H.L.A. Hart’s criticism of the liberty principle
This handout is a draft.
Hart makes criticisms relating to John Rawls’s liberty principle in his paper ‘Rawls on liberty and its priority’. This handout presents three criticisms from his paper. Note: the first and second criticisms are not criticisms of the liberty principle itself.
What is the liberty principle?
The liberty principle is a principle which Rawls thinks a just society must adopt. According to it:
each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.
The basic liberties are: political liberty, which is the right to vote and the right to be eligible for public office; freedom of speech and of assembly; liberty of conscience and freedom of thought; freedom of the person, along with the right to hold personal property; and freedom from arbitrary arrest and seizure.
Rawls does not allow basic liberty to be sacrificed for anything but greater equal basic liberty, except in special conditions in order to move out of these conditions, such as if the society is impoverished.
Criticism 1: concerning sexual relationships and drug consumption
Hart observes that much of the legal discussion regarding the restriction of liberty has concerned the liberty to have certain sexual relationships and the liberty to take certain drugs. Hart does not specify the sexual relationships he has in mind.
Hart isolates a passage in which Rawls rejects the view that one can justify restricting liberties in these areas by appealing to ideals of human flourishing, e.g. by appealing to a religious or non-religious ideal according to which some sexual relationships are good for human beings while others are perverse.
Rawls says that the restriction of liberties in both areas can only be justified, if at all, either because (i) the result is greater basic liberties for all or because (ii) some sexual activities and some forms of drug use are against natural duties. Natural duties are those duties we have anyway, i.e. without having to make a promise or consent or enter into a contract in order to acquire them.
Hart objects that Rawls is inconsistent here. Rawls’s official doctrine is that basic liberties can only be restricted for the sake of greater basic liberties for all, hence it is inconsistent to introduce the possibility of appealing to (ii) specifically in the case of sexual relationships and drug consumption.
Hart also observes that if Rawls introduces the possibility of appealing to (ii) as part of his official doctrine, then he has to deal with the fact that we have a natural duty to help others when they are in need of help and we can help them at little cost to ourselves. Would Rawls allow us to restrict liberty within society so that this duty is carried out? It is doubtful that he would.
Criticism 2: concerning reasonable disagreement about the ranking of basic liberties
The basic liberties can come into conflict. A person who owns enough land, through the right to hold personal property, may seriously restrict freedom of the person, because the legal protections against trespassing restrict freedom of movement.
There can be a situation in which the amount of landownership is such that there is reasonable disagreement about whether to compromise the right to personal property or the right to freedom of movement. It is not obvious which right should be compromised for the sake of realizing the other right.
Hart observes that Rawls provides no way to resolve such conflicts within the set of basic liberties.
Criticism 3: concerning the liberty principle and harm
The liberty principle is intended to be in harmony with important liberty-restricting practices within democratic societies. But Hart observes that we restrict some basic liberties not for the sake of greater basic liberty for all, rather because of the pain or unhappiness that might occur if we do not have these restrictions. And we cannot justify these restrictions if we appeal only to greater basic liberty for all as our justification.
Hart gives the following examples of laws restricting basic liberties to prevent pain or unhappiness: laws restraining libel or slander, and laws against publications grossly infringing privacy.
Hart, H.L.A. 1973. Rawls on Liberty and Its Priority. The University of Chicago Law Review 40: 534-555.