Last Updated on October 9, 2020, by eNotes Editorial. Word Count: 1387
This chapter is the first of three chapters in part 2 of A Theory of Justice that describe the basic structure of a society and the duties and obligations that sustain the structure. The institutions that are discussed are those of a constitutional democracy. This chapter and the two that follow attempt to define a workable political conception of the principles of justice that have been discussed in abstraction in earlier chapters.
The application of the principles to institutions are described through a four-stage sequence. The basic structure is briefly examined, and the bulk of the chapter concerns the concept of liberty. Three problems of equal liberty—namely, equal liberty of conscience, political justice, and equal political rights, and equal liberty of the person and its relation to the rule of law—are discussed. The priority of liberty and the Kantian interpretation of the original position are the concluding topics covered in this chapter.
Rawls looks at the three kinds of judgments that a citizen has to make when setting out a framework for the application of the two principles of justice. First, a citizen has to judge the justice of legislation and social policies. Secondly, they have to decide which constitutional arrangements are just for reconciling conflicting opinions of justice, as differences of ideas and opinions between people on such matters is inevitable. The third stage is when the citizen has accepted a certain constitution as binding and the procedure of majority rule has been duly accepted; the citizen must still consider when the enactments of the majority are no longer binding in any situation. This means that they will have to judge the limits of political duty and obligation. In the final stage, the citizen is in full possession of all the facts and must review the application of rules to particular cases by judges and administrators and make a decision on following such rules or resort to civil disobedience or conscientious refusal.
Concerning liberty, Rawls begins by saying it must be understood in terms of the agents who are free, the restrictions or limitations they are free from, and what it is that they are free to do or not to do. Within the ambit of liberty, basic liberty enjoys precedence, because it is only when this is assured that other liberties can also be accessed by the ordinary citizen. What is important is to remember that a “basic liberty covered by the first principle can be limited only for the sake of liberty itself, that is, only to insure that the same liberty or a different basic liberty is properly protected and to adjust the one system of liberties in the best way.”
Considering the inability to take advantage of one’s rights due to poverty or ignorance, Rawls does not count this as a constraint on liberty itself, but a test of how the two-part basic structure allows a reconciliation of liberty and equality. Thus, we can understand liberty to mean the complete system of equal citizenship, whereas the value or worth of liberty would depend on how individuals and groups are able to advance their ends within the framework of this system.
Rawls considers that the argument for equal liberty cannot be presented without the question of equal liberty of conscience. This means that in the original position, even if they do not have a complete idea of their religious and moral convictions, parties must choose principles that secure the integrity of their religious and moral freedom. In this vital sense, a majoritarian or dominant section of society cannot take away the equal liberty of conscience of a minority. This liberty is to be preserved in absolute terms and cannot be surrendered for any social or economic benefits.
However, although from a constitutional convention the parties in justice as fairness are guaranteeing moral liberty and freedom of thought, belief, and religious practice, there is a restraint that operates on this freedom, and that is public order and security. For a government to apply this restraint is in practice following from a choice that would be made in the original position, because it is the maintenance of public order that gives everyone the opportunity to achieve their ends. It is also important to note that a guarantee of equal liberty of conscience is not based on a skepticism about philosophy or an indifference to religion. Rather, the tolerance expressed in the equal liberty of conscience is based on justice and not on religious or metaphysical factors. It accords atheism and skepticism as much space as conventional religious practice. In this way, it contrasts with the limited toleration put forward by writers like Rousseau or Locke.
Does justice require the toleration of the intolerant? Rawls describes this as one of the features of the stability of just institutions and systems. Citizens in a free society must regard one another as capable of justice. When an intolerant sect arises, it is possible that they will perceive their liberties being protected as a feature of their just constitution and develop an allegiance to it. Rawls therefore recommends that when an intolerant sect arises, “its freedom should be restricted only when the tolerant sincerely and with reason believe that their own security and that of the institutions of liberty are in danger.”
Rawls writes at length on political justice and the constitution and what this means for equal liberty. Equal participation in a just society requires that all citizens have equal rights to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply. All citizens must have equal access to running for public office, under the parameters that have been agreed upon. While freedom of speech and assembly and liberty of thought and conscience are the hallmarks of a democratic regime, compensating steps to preserve all the equal liberties must be undertaken. Toward this, the government must spend money to encourage free public discussion and use tax revenue to ensure political parties are not dependent on private economic interests.
If a constitution imposes limitations on the principle of participation, any inequality in the basic structure must always be justified to those in the disadvantaged position. This means that a restriction on equal political liberty should be acceptable to those with lesser advantages when they see it as a greater protection for other liberties.
Rawls reiterates that the conception of formal justice and the regular and impartial administration of public rules becomes the rule of law when applied to the legal system. For a legal system to give effect to the precept that similar cases be treated similarly, laws should be expressly promulgated and their meaning clearly defined, statutes should not be used as a way of harming particular individuals, and penal laws should not be retroactive to the disadvantage of those to whom they apply.
The chapter concludes with an examination of the Kantian interpretation of justice as fairness. Rawls presents the veil of ignorance as a representation of the Kantian view of autonomy—the expression of a person’s nature as a free and equal rational being. He finds support for the Kantian notion of autonomy in the mutual disinterest of the original position.
This chapter covers topics that have often appeared as challenges in the functioning of modern democracies and emphasizes the priority of equal basic liberty. It also describes the role of citizens in how they develop a constitution for themselves and how they address issues around the will of the dominant majority and the interests and concerns of the minority. Rawls recognizes the frictions that can develop in a constitutional democracy when an intolerant sect takes advantage of equal basic liberty to start propagating radical and intolerant views. He has spoken of the manner in which these intolerant sects may be dealt with in the broader scheme of justice and tolerance.
How important is the rule of law, and what gives it authority? Rawls’s principles of justice are applied to institutions for answers to this question. As a prescription for several of the problems that are discussed in this chapter, the answer seems to lie in more rather than less freedom. This puts Rawls’s work squarely on the side of an inclusive liberalism that rejects all forms of authoritarianism.
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