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4 The Priority of Civil Liberty I. Introduction Chapter 3 focused on political liberties, that is, those basic liberties, both core and auxiliary, that serve as institutional expressions and supports of our moral autonomy in the domain of right. The core political liberties are the rights to vote and hold public office, and the auxiliary political liberties include free political thought, speech, press, and assembly as well as minimal protection at least for psychological and physical integrity. I will turn in this chapter to civil or nonpolitical liberties, that is, those basic liberties that serve as either direct or indirect institutional buttresses for our personal autonomy. Civil liberty incorporates nonpolitical “freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person . . . ; the right to hold personal property and freedom from arbitrary arrest and seizure.”1 This distinction between the political and civil liberties has been a consistent feature of Rawls’s political thought.2 Although he asserts that these two classes of basic liberties are “of equal weight . . . with neither externally imposed on the other,” I showed in the last chapter that political liberties take priority over civil ones in cases of conflict (PL 412). In this chapter, though, I set 1. TJ 53. The line of demarcation between political and nonpolitical basic liberties is not as clean as I imply here. For example, insofar as one’s plan of life involves ambitions for high office, the political liberties can act as supports for one’s personal autonomy. Moreover, insofar as one’s plan of life takes account of our political duty to participate in collective self-legislation, it becomes an expression of moral autonomy, and in a sense the nonpolitical liberties that support the autonomous formation of this plan support moral autonomy in turn—at least in this case. I am, of course, just redescribing the mutual support of the three hierarchically ordered stages of the extended Kantian conception of the person that I defined and defended in chapter 2. 2. TJ 176–77, 195, 201–2, 205, 217; PL 4–5, 206, 299. Rawls calls the civil or nonpolitical liberties “the other freedoms that, so to say, define the intrinsic good” of citizens (TJ 205). The Priority of Civil Liberty 153 aside the internal priority relation between the two sorts of basic liberties and concentrate on the priority of basic liberties in general, and civil liberties in particular, over other concerns: the priority of liberty regards the basic liberties as paramount and forbids their sacrifice for the sake of efficiency, utilitarian and perfectionist ideals, or even other principles within justice as fairness (namely, FEO and the DP), regardless of the size of the benefits that might obtain as a consequence of such sacrifice. Two examples will illustrate the force of this priority vis-à-vis the two inferior principles of justice. Suppose that a law is proposed to punish (maybe only with fines) advocacy of racially and sexually bigoted doctrines on the grounds that their spread would hinder the implementation of FEO: the dissemination of such doctrines in a population—especially among employers—may hamper the matching of people and their talents with appropriate jobs in the basic structure. Such a law would clearly violate the priority of liberty, as liberty can be sacrificed only for the sake of liberty, and would therefore be ruled out.3 Now suppose that a law is offered to punish advocacy of ascetic or antimaterialist doctrines (e.g., the teachings of Jesus in the Gospels) on the grounds that their widespread adoption would effectively undermine the DP’s mandate: were such ideas to gain in popularity, economic trade and production would likely diminish and fewer resources would therefore be available to redistribute to the least advantaged members of society. Again, if EL is lexically prior to the DP, such a law must be rejected. The priority of liberty has always played a central role in Rawls’s political theory. Rawls notes that “the force of justice as fairness would appear to arise from two things: the requirement that all inequalities be justified to the least advantaged [the DP], and the priority of liberty. This pair of constraints 3. The allowable sacrifices of liberty for liberty can take several forms. First, some basic liberties might be sacrificed for the sake of others: for example, free political speech (in the form of campaign expenditures) may be curtailed...

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