1 QUESTIONS AND NOTES ON RAWLS, CHAPTER 4, EQUAL LIBERTY Rawlsian terminology that you need to understand: the four-stage sequence (the gradual lifting of the veil of ignorance throughout an idealized choice of principles, constitutional rules, and laws), lexical priority, the priority of liberty, the equal worth (fair value) of the political liberties, the Kantian interpretation of justice as fairness. The Equal Liberty Principle is the first principle of justice, the flagship in Rawls’s system. The basic liberties it protects are heterogeneous. Questions to consider: what are the basic liberties, what establishes a liberty as basic and so protected by the Equal Liberty Principle, why should the Equal Liberty Principle have strict lexical priority over the other principles in Rawls’s system? (The answer to this last question comes in section 82, toward the end of the book.) Section 33, equal liberty of conscience. Since the basic liberties are diverse, the case for each one needs a separate argument. Rawls discusses equal liberty of conscience to illustrate how these arguments go. Liberty of conscience is somewhat vaguely characterized by Rawls. It seems to include freedom of religion as usually understood, and would be violated by restriction of religious liberty or by giving one religion special privileges by making it the established church. In the original position, Rawls argues, the parties will reason as follows: 1. They know they might have religious or ethical obligations. 2. If they do have such obligations, they might be extremely important, top priority. 3. They must do what they can in the original position to enable them to fulfill these possible obligations. 4. Hence they cannot acquiesce in unequal liberty of conscience; they can accept only equal liberty of conscience. [[Objection: The parties in the original position also know they might have financial and economic interests that are of the utmost importance to them. So by parity of reasoning they must do whatever they can to ensure that they will be able to fulfill their economic and financial goals. So we then get a case for the priority of economic interests, not for the priority of freedom of conscience. Response: The argument is not trying to establish the priority of the interest in basic liberties over other interests. The argument is trying to establish that people will choose equal liberty of conscience not unequal liberty of conscience in the original position. [[Objection: Rawls seems to assume the worst possible scenario is that one might end up being a member of a disfavored religion –for example, a Catholic in a society where Catholics are in the minority and Protestantism is the state-established religion. But maybe the worst case the parties should be contemplating, so far as this argument goes, is that one will be converted from one’s faith by religious proselytizing. So here is a way to guard against this fate in the original position: Choose a conception of religious liberty that does NOT include religious freedom of speech, the freedom to proselytize and to try to convert other people to one’s faith. The Ottoman Empire enforced freedom of religion along this line: The major faiths are all free to worship in their own churches, but none is free to try to convert the adherents of other religions by persuasive speech. This is not equal liberty of conscience as we usually understand it. [[Objection: Just knowing in the original position that you might have religious or moral obligations of utmost importance does not yet suffice to justify choice of equal liberty of conscience in the original position. The question arises, what is the character of these obligations. One’s religious obligations may stress the obligation to make a pilgrimage to Mecca or Ireland once in one’s life, and hence to fulfill the obligation one must have sufficient cash. One’s religion may not place any importance at all on public worship and hence no importance at2 all on the freedom of public worship. One’s religion may instead stress the importance of inward spirituality, living according to one’s conscience or reserving a lot of time each day for meditation and silent prayer. If living conscientiously is important, what would loom in importance would be securing the training of children to form their consciences. If daily silent prayer is important, one needs above all not to be forced to be engaged in any employment that takes up too much of one’s day—one needs leisure time. The connection between “I might have religious obligations of transcendent importance” to “I should favor equal liberty of conscience” is quite loose.]] Rawls elsewhere suggests lines of thought concerning freedom of conscience and freedom of speech that may be more promising. See p. xii in “Preface to the Revised Edition”: The basic rights and liberties “guarantee equally for all citizens the social conditions essential for the adequate development and the full and informed exercise of their two moral powers—their capacity for a sense of justice and their capacity for a conception of the good.” See also section 82, p. 475, “The parties conceive of themselves as free persons who can revise and alter their final ends and who give priority to preserving their liberty in this respect.” On the same page he writes that people have a highest-order interest in how all their other interests are shaped by social institutions. Call this the argument from highest-order interests. It doesn’t uniquely single out free speech for protection any more than education and socialization and adequate resources and leisure time, since these latter are also social conditions essential for the development and exercise of the moral powers. But this may not trouble Rawls. [[Here is a closely related line of thought that Rawls does not to my knowledge explicitly state: People care (and should care) above all not for the satisfaction of their present aims and values, but for the fulfillment and achievement of genuinely choiceworthy aims and values. To the extent that their present aims might be foolish, silly, or unreasonable, they should be alienated from them. One should welcome a social atmosphere of free speech and one in which a wide array of experiments in living are occurring. These social conditions over time help the individual to choose better aims and values and shed worse