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.
Reference
Hart, H.L.A.
1973. Rawls on Liberty and Its Priority. The
University of Chicago Law Review 40: 534-555.