Philosophy & Public Affairs 31.3 (2003) 246-271
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Rawls's Defense of the Priority of Liberty:
A Kantian Reconstruction
Robert S. Taylor
The First Priority Rule (the Priority of Liberty) of John Rawls's Justice as Fairness reads: "the principles of justice are to be ranked in lexical order and therefore the basic liberties can be restricted only for the sake of liberty." 1 The basic liberties are those commonly protected by constitutional regimes, including "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. . . ." (p. 53). The Priority of Liberty treats these liberties as paramount and prohibits their sacrifice for the sake of efficiency, utilitarian and perfectionist ideals, or even other principles within Justice as Fairness (e.g., Fair Equality of Opportunity and the Difference Principle).
The Priority of Liberty has always played a central role in Rawls's political theory. Rawls himself 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, and the priority of liberty. This pair of constraints distinguishes it from intuitionism and teleological theories" (p. 220). As we shall see, its importance in his work has if anything increased over time. Part of the reason for this greater prominence is Rawls's growing ambivalence about the other distinctive elements of [End Page 246] his political theory, especially the lexical Priority of Fair Equality of Opportunity and the Difference Principle. 2 In the absence of the former element, the Priority of Liberty would be the only thing preventing the special conception of justice from collapsing into the general conception, where all social primary goods (and presumably the interests they support) are lumped together. Rawls is deeply opposed, however, to the notion that "all human interests are commensurable, and that between any two there always exists some rate of exchange in terms of which it is rational to balance the protection of one against the protection of the other." 3 Anything short of lexical priority for the basic liberties would countenance such trade-offs under certain circumstances.
This central component of Justice as Fairness has been criticized in a long string of articles, including ones by Brian Barry, Kenneth Arrow, H.L.A. Hart, Russell Keat and David Miller, Henry Shue, Joseph DeMarco and Samuel Richmond, Ricardo Blaug, and Norman Daniels. 4 All of these authors have found Rawls's defense of the Priority of Liberty wanting in certain respects, and many of them have been sharply critical of the very idea of lexical priority for the basic liberties: Brian Barry considers it "outlandishly extreme," while H.L.A. Hart deems it "dogmatic." 5 In Section II of this paper, I will examine Rawls's three arguments for the Priority of Liberty in Theory of Justice and show that two of them do indeed fail (either in whole or in part) because of a common error: Rawls's belief that once he has shown the instrumental value of the basic liberties for [End Page 247] some essential purpose (e.g., securing self-respect), he has automatically shown the reason for their lexical priority. I will hereafter refer to this belief—that the lexical priority of the basic liberties can be inferred from the high priority of the interests they serve—as the Inference Fallacy. Lexical priority is such a stringent condition that a special form of justification will turn out to be necessary for its defense.
As I will also show, however, Rawls's third argument for the Priority of Liberty is not vulnerable to this inference-fallacy objection. This argument, which I will call the Hierarchy Argument, suggests that the Priority of Liberty follows directly from a certain conception of free persons. Unfortunately, the argument as presented is radically incomplete, leaving many important questions unanswered. In Section III, therefore, I present a Kantian reconstruction of the Hierarchy Argument, showing that it can offer a compelling...