In my previous two posts in this series, I explained why Rawls’s original position is just a dressed-up version of Rousseau’s general will in disguise (see here) and why Rawls’s approach to liberty is, at bottom, no different than Rousseau’s (here). Today, I will expound on Rawls’s approach to liberty and explain why his principle of “equal liberty” is an empty vessel.

First off, let’s recall Rawls’s solution to the law-liberty dilemma. According to Rawls, people in the original position (including children, idiots, and non-human animals?), if we are negotiating behind a veil of ignorance, would agree to two (and only two!!) overarching “principles of justice” to govern our politics in the future. First and foremost, we would agree to the principle of “equal liberty”. Rawls’s famous formulation of this principle is as follows:

“First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” (Rawls, A Theory of Justice, reprinted in Cohen 2018, p. 692)

Rawls himself must have recognized that this formulation (“an equal right to … basic liberty”), standing alone, is a totally empty one because he later defines “basic liberty” thus:

“The basic liberties of citizens are, roughly speaking, political liberty (the right to vote and to be eligible for public office) together with freedom of speech and 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 as denned by the concept of the rule of law.” (Ibid.)

For good measure, Rawls then adds the following kicker to this laundry list of liberties: “These liberties are all required to be equal by the first principle [of justice], since citizens of a just society are to have the same basic rights.” (Ibid.) But do the words “equal” and “same” really add anything to Rawls’s pedantic inventory of basic liberties? To paraphrase Peter Weston, the concept of equality, standing alone, is an empty one because we always need some external criterion or yardstick to measure the absence or existence of equality in the first place. [1]

Worse yet (especially from a libertarian perspective), notice what is missing from Rawls’s formulaic enumeration of “basic liberties”. Although Rawls is willing to tolerate “freedom of the person”, he limits this liberty to “the right to hold (personal) property” — the classical liberal idea of “natural liberty”, i.e. the liberty to pursue one’s private interests — is nowhere to be found in Rawls’s laundry list of liberties. This glaring omission is the proverbial “dog that did not bark” — another dead giveaway that Rawls is, in reality, a Rousseauian wolf dressed up in contractarian clothing!

But what about Rawls’s other principle of justice, i.e. the “difference principle”, i.e. the notion that social and economic inequalities are only just if they work to the advantage of the least-advantaged members of society? As we shall see in my next post, Rawls’s second principle of justice requires us to turn to his Harvard colleague, Robert Nozick. Why Nozick? Because it was Nozick who totally demolished Rawls’s difference principle once and for all. (To be continued …)

[1] Peter Weston, The Empty Idea of Equality, Harvard Law Review, Vol. 95, No. 3 (1982), pp. 537-596.