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On Rawlsian ‘Liberty’ – A Diagnostic Probe




Author: Subramanya .V. Mysore

Designation: LL.M. Corporate and Financial Laws, Jindal Global Law School

Email ID: advsubramanya@gmail.com


Abstract


This is an attempt at analytically dissecting John Rawls’s dogma on liberty from his book ‘A Theory of Justice’, 1971 and to contrast it with J.S. Mill’s notion of liberty from his work ‘On Liberty’, 1859. The readers get a shot at perusing hard-edged inquiry of Rawlsian perceptions of ‘veil of ignorance’, ‘intoleration’ towards his liberty of conscience, interpretation of his principles of justice and its associated constraints. This is inclusive of making readers diligent on noble beliefs and loopholes present in both narrations on liberty.


Introduction


Mill’s and Rawls’s notion of liberty can be treated akin once explored from Rawlsian idea of ‘veil of ignorance’, behind this imaginary veil of ignorance, individuals are devoid of any desire or opinion or identity. Here, intelligent individuals choose their basic liberties neutrally. Mill’s utilitarianism opines ‘greatest liberties are bestowed to greatest number of people’ based on a majoritarian target of happiness. Arguably, people behind the veil of ignorance are essentially the same, as they lack any distinguishing factor between them, such as gender or nationality or status etc. If one such individual makes a choice, it is equal to greater number of people making the same choice.


Thus, Rawlsian first principle of justice speaks about equal liberties for all in society such as the utilitarian inclination. Utilitarianism aims to award equal liberty for all, provided, it is leading to greatest happiness in greatest number of people. Rawlsian second principle of justice attests liberty as sound, when it serves the most disadvantaged i.e. in utilitarian sense, food given to the poor creates more happiness in them, than to a well-off individual. This results in an increase of happiness in greatest number of poor.

Basic Liberties and Beyond


Albeit, Rawlsian commentary on liberty bears utilitarian undertones, Mill’s version differs. The source of Rawlsian ‘liberty’ is his first principle of justice i.e. “Each person has an equal right to be a fully adequate scheme of equal basic liberties, which is compatible with the similar scheme liberties for all” this insinuates that every individual is placed equally to avail similar parcel of liberties without any contrasting elements from one parcel to another with priority for liberty over anything else. However, this belief almost matches Mill’s rule-based utilitarianism which champions individualistic equal rights with minimal constraints founded on human dignity.


In Chapter IV from Sub-Chapters 32 to 35 of Rawls’s ‘A Theory of Justice’, 1971, he examines liberty by enlisting three essentials and they are, i) the agents who are free ii) the restrictions or limitations that they are free from and iii) that is they are free to do or not to do. To elucidate, a person ‘X’ is free without any fetters to do a thing or choose not to do it. He indicates a right to do or not to do come with ‘duties’ i.e. ‘X’s right to practice a belief shouldn’t transgress on ‘Y’s. He distinguishes restricting liberty from regulating it and claims basic liberties are one interconnected whole.


In contrast, at times freeness in liberties are determined by constraints attached to it, a bar/ceiling to a right decides the extent of a right, hurling an idea of ‘free liberties’ minus social pragmatism leads us to anarchy. Liberties are not absolutely interconnected as regulation often restricts unconnected individual rights for social order.


He contends, an “adequate scheme of equal basic liberties” be measured on its own scale and then adjusted in consonance with its weight in social dynamics. He envisions that each individual’s liberty has its ‘worth’, with varying worthiness between the rich and the marginalized. He intends to correct liberty’s variation devolving extra worthiness from someone’s liberty to whose liberty is ‘worth’ deficient, such as the oppressed, as inscribed in his second principle “the basic structure is arranged to maximize the worth to the least advantaged of the complete scheme of equal liberty shared by all”.


To juxtapose, the ‘worthiness’ factor of liberty can be subjective and amenable to not only social dynamics but an individual’s personal credence of liberty. Rawls cannot assert his whim on liberty as unprejudiced rather it quashes liberties of the meritorious to feed the incompetent, which can be unfair, subject to exceptions.

On ‘liberty of conscience’, he broods his postulates apply to other liberties as well. He chiefly points, when individuals are abaft the ignorant veil, they are unaware of their moral rights or obligations. Their messiah at this stage is ‘principle of liberty of conscience’ not ‘principle of utility’ and their decision has future implications. He further clarifies; opting utility principle would dissipate their personal right on conscience and selection of faith over greater good of others.


This viewpoint appears unsubstantiated from utilitarian perception because society and individuals are treated as conjugates without separate existence until Mills. Rawls fails at individualizing persons as indifferent behind veil of ignorance and negates a possibility of one choice reflecting over greater number of rational persons as they are all ‘one’ without distinction. He accidentally supports utility over his liberty of conscience.


Mill’s Utility in Contrast


Rawlsian diversification of liberty from Mill’s is extracted from Mill’s ‘On Liberty’, 1859, Chapter III. Here, Mill adopts ‘choice criterion of value’ model to test the efficacy of liberty i.e. a liberty is valued over other when it is preferred by greater number of individuals who have tested both liberties, which is in contrast to ‘liberty worth maximization for the disadvantaged’ model of Rawls.


Mill enunciates three posits, which are, i) free institutions are required for human development ii) free institutions allow individuals to make their preferences of liberty rationally through experience iii) individuals prefer to live under free institutions of liberty.


Rawls contends Mill’s remarks flop at justifying equal liberty for all because it shall be dubious to have similar preferences over liberty at an institutional level or to consider each liberty has an equal saturation point of experience. He critiques value-based calculation on liberty, as it sidelines individual notions over popular notions.


He asserts utilitarian proponents should agree on individual liberties getting culled to attain maximum value for collective good. He holds greatest failure of utilitarian thought is unjustifiability of equal liberty. Point of assent is individual rights get hijacked when social rights are in question, only because they are common to one and all. However, Rawlsian conviction might be inaccurate, in Mill’s rule-based utilitarianism, individualistic equal rights built on human honour and minimal constraints are appreciated.


In fact, Mill disregards the philosophic calculus of ‘pleasure and pain’ noting collective liberties of society begin at individual realm, rooted on custom and one’s moral preference. Therefore, connotes individual liberty is synonym for institutional liberty.


Chains on Liberty


Rawls highlights liberty can only be constrained under ‘publically recognized criteria’ contingent on common sense i.e. ‘in public order or security’, he clarifies, liberty is not inferior to public order but it allows people to achieve their ends ‘whatever they are’. Nonetheless, this assertion reproduces Mill’s belief. Rawls forgoes an eventuality of liberty restraining criteria becoming politically molested than thriving on constitutional wisdom.


Insularity to Liberty


On intolerant religious groups’ vis-à-vis liberty of conscience, identical to Mill’s views, he adds, these groups need to deliberate and seek adjudication of their dissension instead of trashing whole institution of liberty. Mills advocates bipartisan discussion and dialogue to iron out dissimilarity in ideology or speech.

Rawls recognizes ‘intoleration’ of groups to ways and means of society as their right, provided, they sincerely ‘believe that…their own institutions of liberty are in danger’. Nevertheless, He contends ‘the stability of a well-ordered society’ would accrue upon intolerants accepting liberty of conscience over time without attempting to dismantle it.


In contradiction, intolerance to an interpretation of liberty can be timeless; time doesn’t have a catapulting bearing on this. Similarly, pressing citizens to assent his ‘liberty of conscience’ ideology to attain a ‘well-ordered’ society can harm more than constructively addressing intolerance.


Rawls calls his principles of justice as ‘kernel of morality’ to whichever moral positions individuals hold. Rawlsian principles can be resorted to resolve various moral dilemmas but not all, his theory lacks practical application in capitalist societies, he contentiously interprets justice to serve only the needy with equal liberties and his abstract construct of ‘veil of ignorance’ can be ultra-philosophical.


Final Thoughts


21st century is a period of hybrid innovations; we are noticing proliferation of hybrid seeds in agriculture, hybrid vaccines in health science and even hybrid fuel for motor vehicles. Consequently, it is wise to tread the path of hybridity in jurisprudential theory. Likewise, Rawls’s veil of ignorance makes a citizen rational enough to survive Mill’s majoritarian society. Mill’s ultimate goal of individual happiness cannot fructify without upliftment of the disadvantaged in Rawlsian society. In absence of Mill’s suggestion of deliberation in social context, intoleration to Rawlsian liberty cannot be dodged. Finally, both theorists agree in unanimity that liberty and/or justice are prized only when it is shared to maximum expanse, not when it is clutched in hands of a few but only differ in the modus-operandi to reach that goal. Hence, it’s crucial to cherry-pick the condensations of both theories for benefit of the contemporary society by adapting its guidelines to solve some of the pressing civic issues of today and tomorrow.





#JSMill

#TheoryOfJustice

#JohnRawls

#Liberty

#Jurisprudence

#Liberty&Justice


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