The Priority of Liberty: An Argument from Social Equality
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Springer Nature B.V. 2020
DEVON CASS*
THE PRIORITY OF LIBERTY: AN ARGUMENT FROM SOCIAL EQUALITY
(Accepted 15 July 2020) ABSTRACT. 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 (including the fair value of the political 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. I. INTRODUCTION
The lexical priority of the basic liberties is one of the most distinctive features of John Rawls’s theory of justice. While this aspect of his view has been widely critiqued, it has received less defence, from either Rawls or his supporters, than one might expect. This is surprising, both because of the vast literature on Rawls’s work, and because the issue of whether liberty is to be given some kind of special priority is of great significance for legal and political theory in general. Many theories of justice, including those of liberal, libertarian, and republican stripes, assign some package of liberties special priority.1 If this widely shared approach is right, it is of great importance to determine which set of liberties should be given priority, what kind of priority they should be given, and why. We 1 Indeed, Rawls claims that assigning a package of basic liberties special priority is characteristic of any liberal theory. See John Rawls, Political Liberalism (Columbia University Press, 2005).
DEVON CASS
should want to know, then, what contribution Rawlsian theory might make to our understanding of these issues. I believe Rawls does indeed offer useful theoretical resources for thinking about the nature and importance of the basic liberties, but that they have not yet been cast in the most plausible light. In this paper, I examine three arguments in support of the priority of liberty that have been put forward by Rawls and his supporters. 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 raise some problems for these views, arguing that none of them adequately defends 1) the distinct claim of lexical priority, for 2) the complete package of basic liberties (including the fair value of the political liberties), on the basis of reasons that are appropriately public. I should note, then, that I am interested in how the priority of liberty might be defended in the spirit of Rawls’s later work, e.g., in Political Liberalism. I will assume that given facts about th
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