Andrew Robinson - Theory Blog

Monday, November 15, 2004

RAWLS AND FREEDOM (notes - work in progress)

RAWLS ON FREEDOM
“that liberty of each individual which, far from halting at a boundary before the liberty of others, finds there its
confirmation and its extension to infinity” - Bakunin, “Marxism, Freedom and the State”, p. 7

“Freedom” is one of the basic characteristics of “persons” according to Rawls, and it is therefore one of the attributes that one must have in order to qualify as a “moral person” and be taken into account in his theory. It is an attribute rather than a social relation or a type of “good”, since it is something persons can be “conceived as” (e.g. PL 29) rather than something which they agree to or which is delivered by the basic structure. (In this sense, “freedom” in the phrase “persons conceived as free and equal” should be linked to the idea of “autonomy” and differentiated from the idea of “liberties” or “freedoms”, which are a type of “good”). Persons can thus apparently be “free” regardless of relations between them, although some social relations express people’s “nature” as free more effectively than others. (For instance, one can still manifest one’s “freedom” even in contexts where injustice is “inevitable” in Rawls’s account). If one discusses freedom, one soon ends up with the question: freedom from, or to do, what? Persons as “free” must be conceived as being (and implicitly, actual people must be required to be ) “free” from (or to do) something specific. “Freedom” in Rawls’s lexicon means freedom for the essence of the self. It cannot relate to freedom from social repression, since Rawls supports this; nor can it refer to the specific “liberties” Rawls endorses, since such a reference would render his theory tautological.

It turns out to mean, in effect, freedom from oneself, and as a result, tends towards doublespeak. For instance, it means freedom to change one’s conception of the good (or in effect, freedom of one’s essence from one’s own beliefs). (This does not only mean that institutions permit people to do this, but that people are conceived as constitutively capable of doing so). Persons’ ‘public, or institutional, identity’ does not change along with changes in their beliefs (PL 30). Free persons ‘view themselves as capable of revising and changing [their] final ends’ (CW 260; c.f. TJ 131-2), and freedom is the right to be viewed separately from one’s ends, conception of the good or comprehensive doctrine (JAFAR 21). While this assumption “frees” people to some degree from demands such as religious conformity, it also has repressive implications. For instance, it means the imposition of the idea of a molar self, with a resultant impossibility of “redemption” or becoming-other. This has implications regarding issues such as punishment, imposing a repressive fixity on identity. Where the assumption becomes doublespeak, however, is where it is used as a basis for demanding that people change their conceptions of the good. Hence, a “free” person is not to be irrevocably attached to any belief or interest (CW 255). “Freedom” is taken to mean that one ‘must adjust and reconcile’ one’s other commitments with one’s (imposed) public identity (PL 30). People are assumed not to be identical with or bound to any interests closely enough to be linked inevitably to them, and it is because of this that interests can be deemed inadmissible (TJ 131). That conceptions of the good ‘must be revised’ if they clash with justice is taken to be “freedom”, because it involves an obligation (which Rawls terms a ‘right’) ‘to stand apart from conceptions of the good and to survey and assess their various final ends’ (CW 381). This means dropping any conception of the good which clashes with one’s public identity. Clearly this is the opposite of freedom: it is a demand for submission. The role of the conception of “persons as free” is that it justifies the (impositional and probably incorrect) assumption that people can simply drop their beliefs easily enough to permit such a demand. Also, the “freedom” to revise one’s final ends is used as doublespeak to introduce an insistence that one do this in some cases. (In fact, there must also be an additional “final end” above and beyond the particular final ends, which motivates the willingness to change these and which provides the standpoint from which to survey them. This, too, must be a contingent “end”). People are, however, also seen as having a ‘highest-order’ interest in the issue of how social institutions shape their final ends, because, while quite capable of reshaping them, they don’t want others doing this for them (TJ 131-2). Since none of the “interests” are actually non-negotiable, this suggests that Rawls constructs people as having a very petty sense of identity which resists the influence of others as a matter of principle.

Rawls claims that his image of people being “free” to alter their final ends leads, in his own view, to a choice whether or not to do this. In private life and in associations, people retain a right to view themselves as having inalienable commitments, irreducible doctrines or ends they would not or could not change (CW 332; c.f. JAFAR 22). He also claims to be allowing religious views as ‘non-negotiable’ (PL 311; c.f. 314), and that the right he offers is a right to alter or preserve final ends (TJ 475-6). These claims are, however, untrue, since Rawls allows the “public” identity to trump and bulldoze all the other identities. The “non-negotiable” views are therefore treated as if very much “negotiable” whenever they interfere with the functioning of the state. Also, a person who affirms in public that she or he exists separately from ends while also affirming privately that she or he does not clearly cannot do both “in good faith”. Such a person could not, therefore, support the public conception of justice for what Rawls terms “the right reasons”.

Secondly, “freedom” means being an origin of claims (PL 32). Rawls assumes that people view themselves as free persons with fundamental aims and interests and with claims on each other regarding the organisation of the basic structure. Citizens are, and see themselves as, self-authenticating sources of valid claims (LN 33, PL 32, CW 330). It is this ability to make claims which Rawls says differentiates citizens from slaves (PL 33). Claims do not result from prior duties to society, or from one’s social role (CW 330). He assumes that these include some specific interests supposedly guaranteed by the first principle of justice, such as interests in religious freedom and integrity of the person (TJ 131). This is the only part of Rawls’s concept of freedom which actually involves freedom from something external, because it means that one is apparently guaranteed some degree of voice. However, it is important to realise that the resultant voice is highly conditional. One is not free from being silenced for a whole range of reasons, including if what one says carries “no weight” according to the state and if one’s concerns are “outweighed” by something else. One is only a source of “claims”, which are weighed and accepted or rejected by an external agent. Further, only claims which are of the appropriate type (i.e. for primary goods) and which fall within the permitted range are included. Further, while “claims” may not arise from one’s social role, this certainly affects both the issue of whether one is allowed to make claims (whether one is a “normal and fully cooperating member of society”) and how much one is to receive under the Difference Principle. At one point, Rawls contradicts his statement that people are sources of claims, suggesting that legitimate claims in fact result from the social system (TJ 76). The aim is not ‘self-mastery’, but giving people an equal choice in ‘how basic social conditions are arranged’ (TJ 205). Thus, the freedom involved is not very great. Rawls is posing as if he is giving people a capacity to self-posit, when actually he is not. (Nor does he limit self-positing only reciprocally, i.e. by reference to others’ equal right to self-posit, since the role of the ideal of the person is to eliminate self-positing entirely). In addition, the status of non-citizens is unclear. A further problem is that, if Rawls’s account of human sociability is accurate, people are not in fact sources of claims at all: the claims are already pre-constructed by the social system, and the identity as a source of claims must be “false consciousness”. Also, the right to be a source of claims does not apparently entitle actual people to make claims. It is, rather, only a right in the sense that laws are to be justified by reference to one’s interests (JAFAR 23-4). It is, therefore, a discourse of self-alterity.

Rawls’s concept of freedom also includes the idea of responsibility for ends (PL 33). This kind of responsibility is included in (not balanced against) the concept of freedom (CW 259). Hence, ‘citizens… are to be at liberty to take charge of their lives’, which means that ‘each is expected by others to adapt their conception of the good to their expected fair share of primary goods’ (PL 189-90; c.f. CW 371). I shall return to the concept of “responsibility for ends” later. In my view, it is a patently impositional formulation with inhuman implications. For the time being, I shall note only that it is not in any substantive sense “freedom”. In contrast, it involves a compulsion to conform to an external social system. It is not freedom from interference with one’s desires and needs, but rather, is precisely the basis for such interference. One is neither “free to” pursue desires nor “free from” expectations about them due to “responsibility for ends”. Indeed, it is unclear what this so-called “freedom” is a freedom from or a freedom to do. It appears, again, to involve freedom of the essence of the self from contingencies such as desires and beliefs; in other words, it involves a reactive fantasy of being free from one’s own desires and beliefs. Hence, Rawls regards ‘individuals as free and responsible masters of their aims and desires’ (CW 266). In other words, freedom is freedom from oneself. This fits with the tendency for capitalism to turn people into “free” wage-labourers by destroying pre-existing structures and commitments. Being “at liberty” to “take charge of one’s life” by conforming to the demands of a pre-existing social system and adapting to what this system offers is no more a meaningful concept of “liberty” than being “free” to be killed by someone else, or being “free” to be imprisoned. It is equally an instance of being forced by others, which is the opposite of being “free”. “Freedom”, in the sense of being held responsible by a system which does not take into account one’s desires and which “assumes” one to be able to alter these if ordered to, is slavery.

In some passages, “freedom” is taken to be coterminous with Rawls’s other concepts. Someone is “free” if she or he has capacities for a sense of justice and for a conception of the good, as well as having reason (PL 19). This makes the concept a hooray-word, without a specific referent of its own. In another, even more worrying, passage, Rawls suggests that the freedom he seeks is freedom for reason (PL 222-3). This is echoed by a passage where Rawls praises the ancient Greeks for conceiving moral philosophy as ‘the exercise of free, disciplined reason alone’ (PL xxiv). Since this can be distinguished from freedom for actual people, it can be taken to imply the dictatorship of “reason” over people, or domination by a group who claim to be bringing out people’s “reason”. On another occasion, he says that one has freedom if one can make demands in order to meet one’s highest-order interests (CW 330), which are in effect the interests in conforming to Rawls’s model of the person. This is another instance of “freedom” as “freedom” for an essence.

The most obvious case of the image of “freedom” as freedom for an essence occurs in various passages where Rawls writes of freedom from base impulses. For Rawls, being held accountable to the principles of justice ‘does not stunt our nature’, but rather, realises this nature at the expense of the ‘narrower impulses’ it ‘enables us to control’ (TJ 403). This image of an essential self besieged by desires as if from the outside leads to an image of repressive apparatuses allying with the essence to ward off this danger. In other words, freedom for “the person” is freedom from those aspects of one’s actual person which do not fit the essence. In this model, freedom is identified with conformity and control.

What is completely missing from Rawls’s conception of freedom is any idea that it entails something (whether dignity, desire or even needs) separable from the demands of the social system. Hence, it leads to situations in which the state could oppress people while claiming to express their freedom. Any impression that Rawls’s conception of persons as “free and equal” has anything to do with actual freedom for actual people is misleading. Freedom is freedom for an essence, the mythical noumenal self, and actual people are in effect to be enslaved by this ideal. The main function of the concept of “freedom” in Rawls’s theory is to potentially remove this crucial word from the vocabulary of his critics. Indeed, on some levels Rawls seems to be afraid of freedom. For instance, he does not want people to be in his terms ‘required’ to ‘choose from countless possibilities without given structure or fixed conditions’. One of the advantages of a conception of justice is that it makes one’s deliberations ‘more manageable’ (TJ 494). His view of such freedom as compulsion - as “requirement” - suggests that there is a pervasive displacement between freedom and unfreedom in Rawls’s theory. Rawls would rather say that people in chains are “free” in essence (so he can keep certainty and the master-signifier) than endorse contingency. Rawls conceives of everyday life as encumberment and wants argument ‘unencumbered by the singularities of the circumstances in which we find ourselves’ (TJ 453). (He sometimes weakens this, however, by suggesting that autonomy can only be exercised if one has a certain level of wellbeing [LN 118]).

Rawls also sometimes uses the concept of “freedom” interchangeably with a Kantian notion of autonomy. In such passages, Rawls assumes it can be deduced in advance as to what a free person will do. ‘Thus if a person realizes his true self by expressing it in his actions, and if he desires above all else to realize this self, then he will choose to act from principles that manifest his nature as a free and equal rational being’. One therefore acts freely by conforming to the principles of justice. In arriving at these principles, Rawls is deciding ‘which principles when consciously followed and acted upon in everyday life will best manifest this freedom in their community’, with the freedom in question being ‘independence from natural contingencies and social accident’. ‘Our nature as [free and rational] beings is displayed when we act from the principles’ of justice. ‘Men exhibit their freedom’, in Rawls’s sense, ‘by acting in ways they would acknowledge in the original position’, and ‘liberty is acting in accordance with a law that we give to ourselves’ (TJ 224-5; c.f. PL 24, 77). Further, ‘political autonomy expresses our freedom’ (PL 403). Rawls claims that by acting from the principles of justice, people act autonomously, because they are following principles they would acknowledge in conditions which best express their nature as free, equal and rational. Thus, ‘moral education is education for autonomy’ (TJ 452). His principles ‘are not simply presented as moral requirements externally imposed’, and this seems to make them a basis for autonomy. If people understand the principles and their basis in the conception of the person, and if it fits with people’s ‘practical reason’, people are ‘autonomous, politically speaking’. Autonomy is identical with acceptance of the political doctrine (PL 98). Full autonomy is a different matter, but even here, Rawls insists people need particular principles to be fully autonomous (CW 310). One can be autonomous even if all one does is submit to a finalised “just” regime. Indeed, even an act of constitutional creation is nothing but submission to “justice” according to Rawls. Freedom is not, therefore, substantive freedom for actual people. It is synonymous with the realisation of an essence, and in this sense, it is a myth of freedom (derived intensionally). It is a word for the status of a particular type of person, constructed through a process of subjectification. There is a contradiction in Rawls’s work, because, as he admits, this “essential” self is in practice a product of particular social processes. Rawls thinks the contradiction is negated by the fact that one can retrospectively rationalise one’s belief in justice in a ‘reasonable’ way (TJ 452). However, the problem does not go away so easily. The rationalisations only appear “reasonable” because one has been subjectified in a particular way, and because one has internalised this subjectification.

Autonomy is also taken to include elements of submissiveness, especially the highest-order interest in justice (CW 383). Although he uses the term as if it were absolute, he admits that the individuality it allows is strictly limited (CW 385). In some essays, Rawls endorses an explicitly Kantian version of the concept of autonomy, suggesting that it expresses an essence of the self. In his later work, he weakens his claim, distinguishing political from moral autonomy, although he still claims that political autonomy is moral. He has merely limited his concerns from “moral personality” to “citizenship” (PL xliii-xlv). Any weakening of the idea of autonomy is purely apparent, since citizenship “normally outweighs” other concerns and so operates as if it were the single essence of the self. The notion of autonomy as distinct from contingency and heteronomy is also problematic because Rawls also portrays his theory as a solution to practical problems (for instance, how to ensure that people with different comprehensive doctrines to coexist).

Finally, there are also occasions where the freedom Rawls offers is simply a freedom to agree. The public conception of justice is to be imposed on everyone, but each person has the freedom to decide why she or he conforms to it and how it fits with her nor his world-view - so long as it does fit (PL 38, 140). The same idea is expresses when Rawls says that he ‘wants citizens to be in a position to know and accept’ the influence of the basic structure on their beliefs (PL 68). In such cases, the “freedom” is purely a freedom of rationalisation. It does not at all negate the impositional character of the social system Rawls proposes.

RIGHTS AND LIBERTIES

Whereas the conception of persons as free is part of Rawls’s essentialist conception of the person, “freedoms” in the plural, or, in most expressions, “basic rights and liberties”, are part of what is delivered by the two principles of justice. They are, Rawls says, ‘our fundamental interests’ (CW 445) ( for instance - CW 590 - it is in the interest of adherents of a religion to defend their own freedom and therefore to endorse equal liberty), and his theory is ostensibly designed so as to guarantee them (PL 319). It is the guarantee of the equal basic liberties which means that Rawls’s theory leads to ‘a highly satisfactory social world’ (JAFAR 115). The first principle of justice depends on the assumption that people would rather not put these rights and liberties in jeopardy (JAFAR 102). Rawls sees his scheme as ‘allow[ing] the most extensive liberty compatible with a like liberty for all’ (TJ 56), and other discussions, such as his discussion of savings, are referred back to the idea of basic liberties (TJ 256). Further, he claims that he ‘most firmly’ secures the ‘basic liberties of a democracy’ and claims that he can ‘provide the strongest arguments for freedom’ (TJ 214). Rawls’s endorsement of these “rights and liberties” is a major part of his appeal to a relatively progressive audience, so it is important to examine whether this crucial commitment is all it seems to be. (It is, after all, in the concept of “rights” that liberalism’s more emancipatory implications are most often expressed). Most often, Rawls is read simply as trying to embed liberty and equality in social institutions (e.g. Mouffe R.P. 43). Actually, these rights are limited in a whole variety of ways, as one would expect for rights derived from an exclusionary conception of the person. After all, the rights are not delivered so as to liberate or enable actual people, but to give expression to this particular ideal. Therefore, Rawls endorses them only because, and insofar as, they perform this role.

I shall discuss the structure, status and limits of these rights and liberties later. In terms of their explicit content, they consist of a fairly standard list of liberal themes and principles. They include freedom of speech and assembly, freedom from psychological oppression, freedom from physical assault and a right to hold and use personal property, including homes and gardens (TJ 53, JAFAR 114). These liberties can include a liberty to do what is wrong (PL 367). Although one may suspect Rawls has derived this list from the history of liberal thought, it is ostensibly justified by reference to the original position. It includes everything necessary for the development of the two moral powers, and excludes anything unnecessary for this (PL 298). One also finds an ambiguous right to a subsistence minimum in some of Rawls’s texts; I shall return to this issue later. He also provides a list of human rights, including (again) a right to own personal property, along with a ‘right to life’ and to freedom from ‘forced occupation’ (LN 65), although he feels discussion of such rights to be ‘superfluous’ in more-or-less well-ordered societies. Human rights are a standard appropriate for international law, and are an external limit on domestic law which can validly be imposed from the outside (LN 80-1).

Lest one think Rawls is being fairly generous with these rights, one should add a few qualifiers suggesting a more conditional significance than their surface appearance suggests. Firstly, they are not unconditional rights at all, and Mouffe’s claim that Rawls believes in ‘an individual endowed with natural rights pre-existent to society’ (?R.P.? 112) is inaccurate. Rather, rights are derived from ‘reciprocity’ (not ‘compassion’), and are given, not because people need them or have them prior to society, but because these people ‘are doing their full share on terms mutually recognized by all as mutually advantageous’ (JAFAR 139). They are rights for a person ‘to be treated accordingly’ if “he” has ‘done his share’ (TJ 275). This suggests that they are conditional: not so much rights as privileges for the included. For instance, Rawls may posit a “right to own” a home, but he does not actually suggest an unconditional right to a home. The “right” is therefore conditional on income. Secondly, they are not given for reasons connected to human beings, but for reasons connected to social stability and order. They ‘make social cooperation stable’ (TJ 293) and should lead to allegiance to the constitution (TJ 192-3), since they express the things people want most of all. They are also limited in two further crucial ways which I shall explore further below: they are conceived as legal rights, and therefore as delivered from above; and they are to be ‘regulated’ so that they fit into an overall scheme. This places severe limits on how far actual people can effectively invoke the “rights and liberties” to protect specific practices. In addition, the priority of liberty only applies in ‘reasonably favourable conditions’ (PL 297); in other conditions, one’s duty is to try to create the kind of society where these conditions arise (TJ 256-8). One might also query whether the rights are given to everyone, or only to “citizens”. The gist of Rawls’s theory implies the latter. A final qualifier to note is that Rawls is deliberately as stingy as he feels he can be with the list of liberties. This is ostensibly to guarantee the most fundamental ones, and because a long list would be ‘too cumbersome’ (JAFAR 112, PL 296). This means that the rights and liberties are not connected to actual needs and desires, being limited to generalities and closed off from new possibilities. The specific list also seems to depend on contentious claims. In particular, his advocacy of religious tolerance depends on religion being more important than other aspects of belief which are not similarly protected (PL 312).

Indeed, contrary to first appearances, Rawls’s theory does not include an unconditional primacy of liberty/ies at all. The phrase ‘priority of liberty’ refers to the priority of the liberties over the difference principle (TJ 214), and Rawls’s claim to be granting extensive rights is mostly founded on his comparisons with utilitarianism (e.g. TJ 181-2). In other words, Rawls believes that the liberties he advocates should not be limited for the sake of greater net satisfaction, greater availability of material resources or a better share of wealth for the worst-off group. This does not necessarily mean that the liberties have unconditional primacy. (Notwithstanding Rawls’s apparent endorsement of such primacy, he cannot possibly believe in it, since it would rule out institutions such as prison which he supports). Indeed, Rawls tends in practice to make the liberties secondary to social order. He does this in a backdoor way: instead of introducing an explicit principle making social order prior to liberty, he depicts a particular kind of social system as a “scheme of liberties”. Hence, if one interferes with this scheme, one “restricts liberty”. Again, this turns “liberty” into a variety of doublespeak. (Rawls also - e.g. TJ 211 - explicitly endorses the use of coercion to enforce distributive and economic policies, which contradicts the idea that the first principle is unconditionally primary over the second).

Indeed, Rawls defines the concept of a “liberty” or “right” in such a way as to project the (systematising rather than liberating) logic of state and related apparatuses into all uses of the concept. A “liberty” or “right” is not apparently something one can claim over and against laws and the will of the state, and it is, furthermore, negative rather than positive in structure. Rawls is inclined to treat everything as either banned or ‘protected’ (e.g. PL 345), as if the state is at the root of all social goods, and “liberty” is no exception. According to Rawls, for a liberty to exist, ‘government and other persons must have a legal duty not to obstruct’ something, through a ban on interference with it (TJ 178, PL 325). ‘Liberty… is a complex of rights and duties defined by institutions’ (TJ 210). Equal liberty limits individuals and associations (e.g. TJ 476). In establishing whether a liberty exists, it is only the issue of how institutions operate and are ‘interpreted and enforced’ which is relevant, not ‘citizens’ psychological attitudes or their comparative levels of well-being’ (CW 364). Freedom is always taken to include a ‘legal duty to interfere’, which is imposed on ‘other men’ as well as the state. Persons are free when ‘protected from interference by other persons’ (TJ 177). Rights are defined by a particular set of practices, and cannot exceed such practices (CW 49). For instance, human rights do not have an anti-state character. Rawls thinks of these as ‘belonging to positive law, which is always coercive and sanctioned by state power’ (PL 411). In other words, one has a “right” only if one is coerced. Rawls refers, for instance, to ‘liberty of the person as protected by the rule of law’ (TJ 180). As a result, he identifies freedom with unfreedom. Punishment, for instance, ‘is acknowledged for the sake of liberty itself’, because “liberty” means ‘regarding the legal system as an order of public rules addressed to rational persons in order to regulate their cooperation, and of giving the appropriate weight to liberty’. Thus, ‘the principle of liberty leads to the principle of responsibility’ (TJ 212). Through such definitional manoeuvres, the state becomes the guarantor of, rather than a threat to, liberties, and the idea of “liberty against the law” (c.f. E.P. Thompson’s book of this title) becomes an absurdity. Liberty can be seen as delivered directly by the outcomes of court cases (e.g. PL 345). The manoeuvre is significant for Rawls’s argument, because he simply assumes that people’s fundamental interests are served by the existence of the institutions which construct “liberties” in his sense. He also creeps very close to doublespeak, since his definition means that a defence of state power becomes a “defence of liberty”. Defining “liberty” in negative terms is also a clear example of a “slave morality”. Threats to freedom are conceived in terms of the disruptive power of “interference” rather than the threats posed by systematisation. Rawls’s model also has overtones of “repressive tolerance”.

Rawls seems to assume that a legal “liberty” actually leads to an effective liberty, and further, that it is the only way an effective liberty can arise. (Sometimes, the manoeuvre is definitional. For instance, poverty and ignorance are threats, not to liberty, but to its “value” [TJ 179], as if a liberty can exist without one being able to exercise it). However, there is a difference between a legal duty not to interfere and a situation as defined in another passage: ‘this or that person (or persons) is free (or not free) from this or that constraint (or set of constraints) to do (or not to do) so and so’ (TJ 177). Also, in order for the basic liberties to do ‘the work of reconciliation’ Rawls assigns to them, it is necessary that they actually be put beyond social competition (JAFAR 115), rather than being simply declared to be so. They also need to be actually-effective to render breaches of the first principle ‘comparatively rare’, as Rawls assumes they do (TJ 174). Rawls actually claims that he opposes any restriction on basic liberties for the benefit of others (JAFAR 100), although his support for punishment seems to contradict this. He also wants to avoid the risk that ‘liberty is restricted by a reasonable fear of its exercise’ (TJ 210). However, there is a problem that he does not show that his proposals would lead in actuality to the effects he wants. The criminalisation of a particular constraint on others’ actions does not necessarily entail its actual absence, nor does the actual absence of a particular constraint necessarily result from a law. (One may, for instance, discuss “customary rights” in some social systems, which are not backed by any law; on the other hand, one may discuss laws which are honoured only in the breach, such as the “right” to protection of health and safety at work). Rawls’s model of “liberties” is therefore an instance of reification. He assumes a fictive (in this case, a legal) construct to be immediately actual, and to be the sole expression of actuality. Even assuming (which is problematic) that liberty is mainly about protection from others, there is no reason to assume that it must take the form of a legal “protection”. Such “protection” may be ineffective, counterproductive and produce its own harmful effects. As Charles T. Sprading puts it, ‘[a]lthough the legal and ethical definitions of right are the antithesis of each other, most writers use them as synonyms. They confuse power with goodness, and mistake law for justice’ (Heretic’s Handbook of Quotations p. 15). The state, in practice one of the biggest threats to “liberty” and one of the main sources of “interference” in everyday life, is turned from a threat into a protector, without any reason being given for this alteration in status. As an anarchist author puts it, ‘[t]he notion of “rights” in bourgeois ideology makes our freedom dependent on the “self-shackling” of states. We can put our trust in no such illusion’ (Freedom, 05-10-02 p. 7). Legal rights are not very effective in generating actual rights, especially when the threat to rights comes from “legal” agents such as the police, the judiciary and the government. There are many cases in liberal societies where people do not exercise their legal rights because of fear of repression. For instance, fear of police violence and arrest is one of the reasons many people do not attend demonstrations. Rawls seems to assume, wrongly, that liberal societies deliver actual (as opposed to formal) freedom. (In fact, to be free from a threat, one only need be in a certain kind of relation with another; liberalism tends to assume that people are a threat to each other unless constrained. In fact, X is only likely to harm Y is X has some specific reason to harm Y. Social action at the level of reasons, motives and relations may well be more effective as a “protection” than any actual effect which might arise on the basis of a formal ban, especially once deviance amplification is taken into account. Oppression arises as a specific social relation; it is not a residual fact which needs to be prevented by state power. For instance, it is pointless to analyse rape outside the context of misogyny, which is implicitly linked to the male-led state. In the west, women do not rape men, although phenomena of this type have been recorded in some societies. On the other hand, there are also societies where men raping women is unknown. Thus, acts result from social relations, not from the absence of prohibitions).

The liberticidal implications of Rawls’s definition of “liberty” become clear when one considers the issue of “interference”. Since a “liberty” involves freedom from interference, this issue is crucial to understanding Rawls’s theory. Rawls uses the term extremely broadly. For instance, the absence of proper conduct in politics is ‘a kind of interference’ (TJ 210). Further, any mode of conduct which constitutes interference can be prohibited, as can a mode of conduct which violates a duty or obligation (TJ 291). In other words, one breaches others’ “liberties” if one acts in any unusual way or if one deviates from a pattern of generalised obedience. This means, therefore, that the operation of the concept is primarily invalidatory. Rather than constructing openness which can be used by agents in various ways, “liberties” are a specific and determinate social structure the disruption of which is taken as “interference” and therefore a valid reason for repression. A rebel who refuses to submit to a social system which appeals to “equal liberties” is labelled as equivalent to a would-be tyrant. Someone who blows the lid on corporate secrecy, smuggles banned books into a prison or is targeted in a “McLibel”-type case suddenly becomes a threat to, rather than an exerciser of, freedom of speech. In this way, an effect is achieved in Rawls’s theory similar to that noted by Marcuse in media rhetoric: the bad words are reserved in advance for the enemy, and the good words for the system (Essay on Liberation; Negations ****). In infrapolitics, Rawls sides more-or-less consistently with the regulatory drive of the state, which puts him on the pole which restricts liberty.

The link Rawls establishes between rights and “practices” is a good example of operationalism. Such a direct link is a way of making voice dependent on conformity to a system of “practices” by preventing writerly uses and reducing the gap between a concept and its use. It also contributes to Rawls’s tendency to make liberty secondary to order. Hence, rights must be circumscribed if they ‘render the practice defining them less effective’ (CW 49). Freedom of choice operates only ‘within the framework of just institutions’ (TJ 393). Rawls also writes, rather strangely, of providing institutional protection for duties (LN 71). That Rawls derives rights from the social system, and does not link them in a positive way to agents, is indicative of an authoritarian tendency in his thought. He also views the liberties as sometimes secondary to the existence of legitimate or just procedures (TJ 174-5).

One result of Rawls’s model is that the slogan “defence of liberty” undergoes a metonymic slippage along the lines: defence of liberty = defence of a system of liberties = defence of the social system = defence of order. Liberty therefore comes to stand for what is often its opposite. It stands for a defence of institutions labelled a priori as free, even when they operate in a repressive way. It becomes, for instance, a defence of the ‘security’ of ‘the institutions of liberty’ (TJ 193). “Liberty” therefore tends to become a hurrah-word or even a form of doublespeak.

Rawls generally avoids an image of individuals as bearers of rights over and against the social system, but he is forced to revive such an image in order to resolve a dilemma over the status of human rights. He denies that there is a contradiction between viewing these as inviolable and insisting that they not be imposed, ‘since the two propositions are plainly correct’. For Rawls, the circle can be squared by reference to a prohibition on enacting any law which violates such rights. However, this prohibition is not legal, but can be carried out by any individual (PL 412, 416). If Rawls believes that rights can be protected from the state by individuals “enforcing” prohibitions on it, it is unclear why he feels the need to couch rights in terms of laws on other occasions. Indeed, his idea of such prohibitions seems to go against his definition of “rights”. His theory is, then, left in a contradiction. To protect individuals from each other, the state must be all-powerful; to protect individuals from the state, the state must be weaker than individuals who stand up for their rights.

Rawls claims that he advocates restrictions on liberty only so as to protect liberty; for instance, ‘arguments for restricting liberty proceed from the principle of liberty itself’ (TJ 213). Indeed, Rawls on several occasions repeats the slogan that ‘liberty can be restricted only for the sake of liberty itself’ (e.g. TJ 214, 220). This is a misrepresentation, because Rawls is not restricting like for the sake of like: he is restricting liberties in the actual sense, to ensure the existence of the social system, identified in his theory with liberty. (It also refers to the more significant argument that different, non-systematised liberties may enter into competition [PL 419], although in such a way that the possibility of competition is conflated with the “need” for a system. It is not simply that rights sometimes clash and thereby limit each other. It is that all rights are to be subordinate to a prior demand that such clashes must never happen). Hence, Rawls treats restricting liberty for “liberty itself” as equivalent to restricting it to ‘strengthen the total system of liberty’ (TJ 220). At other times, the state’s demands are mistakenly identified with “others’ rights”. Hence, ‘the exercise of the right to dissent, like the exercise of rights generally, is sometimes limited by others having the very same right’ (TJ 329). The repression which can be legitimated by an appeal to the social system in Rawls’s theory is actually quite extensive, undermining his claim to be primarily concerned about liberty. Even extra-liberal repression, such as trials based on an assumption of guilt, are justified as long as the reasons given for them include reference to the priority of liberty (TJ 213). A state can use the ‘unjust designs’ of others and/or ‘[u]nfortunate circumstances’ as excuses to act in unjust ways (TJ 213). Further, while Rawls does not believe that a threat to the state is enough to justify suspending liberal rights, he does allow such a suspension if a ‘constitutional crisis’ is severe enough that liberal institutions cannot easily reassert themselves (PL 353-4). In a particularly notable piece of doublespeak, Rawls advocates ‘the more or less temporary suspension of democratic political institutions, solely for the purposes of preserving these institutions and other basic liberties’ (PL 355). Further, while the state is not supposed to withdraw liberties in a ‘discriminatory’ way or on grounds of the general good, it is allowed to do so to defend other liberties (PL 295), again presumably including the existence of the “system of liberties”. It is supposedly justified to restrict free speech ‘if the particular restriction proposed is required in order to protect the State from destruction or serious injury, political, economic or moral’ (PL 351). ‘The limitation of liberty is justified… when it is necessary for liberty itself, to prevent an invasion of freedom that would be still worse’ (TJ 188) - in other words, liberty is to be subject to lesser-evilism. Even ‘enforced silence’ is justified in an emergency (see PL 352). Thus, the freedom Rawls affirms is mostly empty. It is a freedom one does not exercise, but rather, one which has always-already been taken into account by the state. Ultimately, Rawls’s theory is about defending the liberal model of the state, regardless of how much freedom it actually guarantees. States which use a liberal ideology are allowed to operate as dictatorships if they use particular excuses, and Rawls recognises only threats to the liberal state from without, not the threat of its degeneration into fascism from within. Rawls seems to have no problem with what amounts to “special pleading” by judges and other statists, who have a lot to lose from the destruction of the state and who therefore have very particular reasons for wanting its security put above a liberty which is of little use to an agent of the state.

The freedoms offered are, furthermore, defined relative to Rawls’s conception of the person. In his later work, he moves from an idea of maximising freedom to the idea of guaranteeing what he terms a ‘fully adequate’ scheme of liberties. A scheme is fully adequate if it allows for the exercise of the two moral powers in typical cases and if it therefore furthers the goal of achieving a well-ordered society (PL 331-5). It is only in the “two fundamental cases”, derived from the interests of the noumenal self, that free speech is protected (PL 341, 350). A liberty is more or less protected depending on how closely it relates to the two fundamental cases. ‘What distinguishes the two fundamental cases is, first, their connection with the realization of the fundamental interests of citizens regarded as free and equal as well as reasonable and rational’ (JAFAR 113). The system of liberties adopted is to be that which would be preferred by a ‘representative equal citizen’ (TJ 179). In other words, Rawls’s liberties are to a great extent a form of social control: people are “free” to conform to a pre-assigned role. The freedoms are denied a general use-value by being connected to a ‘central range of application’ (PL 297). Rawls also wants to guarantee enough goods that people can make effective use of their freedoms (LN 14), although obviously this raises issues regarding what kind of uses are compatible with Rawls’s theory. Presumably, therefore, he has particular uses in mind. This is not, in Luxemburg’s famous formulation, ‘freedom for those who disagree’ (****), but rather, is freedom for social insiders. Even when he is discussing the repression of the speech of socialists during World War I, one only hears the voices of judges in Rawls’s text, and never the arguments of those who are menaced in this way (PL 354).

The systematisation of “liberties” is therefore crucial to Rawls’s model. He does not posit liberties which individuals can claim from any social system. Rather, before he will endorse a liberty, he insists it be shown to be workable in a particular regime. It has to be part of a general system which would be stable and would motivate citizens through stable expectations (PL 418). ‘Instituting the basic liberties… calls for scheduling and social organisation’ (PL 296). Since the “workable” is here defined prior to liberties, it must express a principle prior to the two principles of justice. The demand for a “workable” system, or, in another passage, for the ‘totality of limitations’ to be assessed (TJ 178), substitutes for a concern with the actual effectiveness and consistency of “rights and liberties”. He wishes to avoid defining his model too sharply, so that the state can respond to specific circumstances as they arise (JAFAR 12). (At one point, Rawls suggests that the liberties should be equal for all [TJ 178], but this clearly cannot be a literal claim, since Rawls supports restrictions which would apply unequally).

The actual institutions Rawls advocates in order to promote “liberty” are fairly familiar, reproducing almost exactly the existing political structure of the United States (e.g. TJ 195). In Rawls’s view, the first principle leads automatically to ‘some form of constitutional democracy’ (TJ 173). As a result, the issue of how much freedom people are to have becomes dependent after all on a pragmatic calculus (albeit not a utilitarian one). Liberties are to be granted based on which constitutional regimes ‘have worked well’ (PL 293, 418). Questions such as whether liberties should be embedded in a formal constitution and whether a liberal society should be property-owning or socialised are left to a ‘case by case examination of instances’ (PL 416). Thus, it is not possible to use the concept of “liberty” to attack actual social systems; these are, rather, to lead the discussion of how much liberty one should have. Rawls claims that ‘historical experience’ shows that the basic liberties can be satisfied practically (PL 298; c.f. 342). This is because he works with an idealised conception of how western political systems operate. For instance, he says that in America, ‘there has been a consensus that the discussion of general political, religious, and philosophical doctrines can never be censored’ (PL 343). This ignores the way in which the actual practice of such regimes often goes against the freedoms they posit. McCarthyism would be an example of this. Again, Rawls tends to render “liberty” an operationalist concept, removing its critical function by identifying it with existing regimes.

The “basic liberties” turn out, therefore, to be not really guaranteed at all. They are to be ‘adjusted’ to political structures, as well as being self-limiting and limiting each other. A liberty is not to be allowed if it is ‘unworkable and socially divisive’ - for instance, a positive right to use public space for political speech is precluded. There are to be no ‘special claims’ based on specific circumstances, and the liberties are to be regulated ‘relating to time and place’ to ensure that their use fits the fundamental cases (i.e. those derived from the noumenal self) (PL 341-2). Rawls introduces a technical distinction between laws which restrict and laws which ‘merely’ regulate liberties, with the latter (such as ‘rules of order’) being expressly justified (TJ 178, JAFAR 111). A rule which Rawls would reject as a “restriction” may nevertheless ‘prove acceptable’ if used as a ‘rule for regulating speech’ (PL 348). ‘In understanding the priority of the basic liberties we must distinguish between their restriction and their regulation. The priority of these liberties is not infringed when they are merely regulated, as they must be, in order to be combined into one scheme as well as adapted to certain social conditions necessary for their enduring existence’ (PL 295). This technical distinction allows Rawls to give the “system of liberties” priority over the liberties themselves. This means that specific groups have no right to speak out of turn, which means that the system of liberties is unresponsive to anything which is not part of its founding principles. Rawls’s justification for this exclusion, however, is that it is ostensibly not exclusionary; liberty is limited only by principles deduced from a doctrine which does not involve prior constraints on conceptions (TJ 223), or in other words, unfreedom is deduced from freedom.

For instance, in relation to free speech, Rawls is mainly interested only in freedom of those kinds of speech which best express the noumenal self. Free speech is reduced to three basic prohibitions: no banning of subversive doctrines, no libel prosecutions by the government and no prior restrictions on the press ‘except for special cases’ (PL 342). Other forms of speech are not protected at all; they are subject to weighting within the system. As long as the central field of application remains protected, other speech is to be permitted only until it conflicts with other liberties (PL 356), or, presumably, with the “system of liberties”. Speech must be regulated so that it ‘serves its purpose’ (PL 296), and there are to be ‘certain regulations’ and ‘adjustments’ to its freedom (JAFAR 149). For instance, Rawls apparently has no objection to employers interfering with the free speech of workers. Even the forms he guarantees are relative to other claims. For instance, the only reason he does not forbid subversive speech is that he thinks human nature is such that people will not revolt needlessly, and that democracies can absorb minority concerns (PL 347). For Rawls, actual free speech is nothing short of impossible. ‘There must be some point at which political speech becomes so closely connected with the use of force that it may be properly restricted’, and in any case, absolute free speech is ‘defended by no-one’ (PL 344-5). Further, public speech is to be ‘orderly’, ‘serious’ and institutionally regulated (CW 580). Here as elsewhere, Rawls does not look seriously at the dangers posed by state interference in speech, and whether such interference really improves “liberty”. Further, although the instances Rawls gives of “obvious” cases for restriction (such as libel and falsely shouting “fire!”) are cases of falsehood, his theory implicitly permits also the censoring of speech which is, or is believed to be, true. (NOTE: Even the “obvious” cases could be challenged in various ways. For instance, one could argue that it is necessary not to penalise such speech so as to retain an extensive right to free speech, or one could argue that punishment would do more harm than good. Perhaps other means would be more effective to minimise such harmful speech). The criterion he uses to distinguish protected from unprotected speech is the criterion of fit with his conception of the person. This clearly does not yield an actually-effective right to free speech even in a limited range of cases, whatever Rawls’s claims that speech should ‘seem’ absolute in his model (PL 355). It yields a freedom to conform to a particular model of what one should be. The difference between “restricting” and “regulating” is simply an instance of word-play. In the process of ‘limiting and adjusting the various freedoms’, Rawls is even prepared to accept ‘reliance on our sense of balance and judgment’, i.e. on “common sense” (TJ 180).

The process of “regulation” also involves the introduction of an emphasis on order. Not only is the assertion of freedom replaced by ‘a regime guaranteeing’ it, but even then, all freedoms ‘may be regulated as always by the state’s interest in order and security’. Rawls terms this a ‘common interest’, and even his favourite liberties, such as freedom of conscience, are subordinate to it. According to Rawls, ‘everyone agrees’ that this should be the case (TJ 186). The state is allowed this power, Rawls says, because of the social-contract point of view. The state ‘regulates individuals’ pursuit of their moral and spiritual interests in accordance with principles to which they themselves would agree in an initial situation of equality’ (TJ 186). These people would supposedly agree that the system of liberty is prior to the liberties themselves, because ‘the disruption of these conditions is a danger to the liberty of all’. Everyone’s ends depend on this overarching system, and the government therefore needs an ‘enabling right’ to maintain the system (TJ 187). Therefore, social order, as the expression of what people “would” believe, is to trump what people actually believe, and therefore is to act as a limit on liberties. The essentialist notion of the person is embodied in the state, and the state is thereby given a pretext to suppress actual persons. This is a form of substitutionism: the state represents the interests of persons, so actually-existing persons are the enemies of persons.

Freedom is secondary to order in Rawls’s theory, but Rawls conceals this by representing order as freedom. Speech can be forbidden simply because it leads to “disorder”. For instance, incitements to illegal violence ‘are too disruptive of the democratic process to be permitted by the rules of order of political debate’ (PL 336; c.f. JAFAR 114). On another occasion, he actually identifies order and liberty, referring to the status quo of a liberal society as its ‘free institutions’ (JAFAR 197). Rawls does not consider the asymmetry which results from the fact that advocacy of state violence is thereby privileged, nor does he consider what effect prohibitions on speech have on “the democratic process” in terms of the strengthening of the undemocratic sections of the state. He has a lot of faith that an overarching system can be set up in such a way that such restrictions actually operate as they are intended to. This is one instance of a wider problem: that Rawls’s radically anti-perfectionist view of what human beings are capable of coexists in his theory with an almost utopian assumption that the state can achieve “justice”. It is, in other words, justified to advocate violence according to Rawls, as long as it is the violence of his own side.

As regards Rawls’s “free individual”, one should recall Foucault’s account of humanism. For Foucault, humanism holds sovereign ‘consciousness (sovereign in the context of judgement, but subjected to the necessities of truth), the individual (a titular control of personal rights subject to the laws of nature and society), [and] basic freedom (sovereignty within, but accepting the demands of an outside world and “aligned with destiny”)’ (Language, Counter-Memory, Practice, Oxford:Basil Blackwell 1977: 221). Saul Newman adds that in humanism, ‘rights and freedom are granted to the individual in return for the relinquishment of… power over oneself’. This is inadequate, because ‘rights and freedoms are meaningless without power’. Further, rights and freedoms ‘are granted to man - who is an abstraction - not to the individual’ (From Bakunin to Lacan p. 85). Rawls is very much in the tradition of “humanism” as defined by these authors. The “freedoms” he offers are gifts from on high which occur in the context of the pervasive unfreedom of subordination to the state. He identifies so strongly with the systematising and ordering role of the state that he allows individuals no transcendent rights over it. He naturalises its social form and identifies it with “necessity” and “protection”. The essence, “man”, is always free, regardless of the form of the state, because what one “would” have consented to remains the same and reflects this “free” essence. As a result, the Rawlsian state can stand for “freedom” even when engaging in repression. Through an image of a self-shackling state, Rawls turns the main threat to liberty into its main protector.

The rights Rawls posits are of such a kind that individuals can never be certain of their justification in claiming them. They are always hedged in by issues of “balance” and “regulation” which give the final say to the state. In effect, they are rights-in-alterity, existing only in a fictive way and not in actuality. By identifying liberty with the state, Rawls provides a pretext for repression, including forms (such as guilt until proven innocent) which destroy effective freedom (in this case, by allowing the state to stitch people up). Rawls basically posits that social control by the state is “liberty”. As a result, he tends to turn people into cogs in the statist wheel, even while affirming the irreducible autonomy of the person. The “first principle” is not really first in Rawls’s theory, because there is an undeclared commitment to systematisation which is prior to it. If the “first principle” were in fact primary, the state would have to refrain from interfering with liberty even when its own existence was thereby threatened. Rawls instead insists that the state is the precondition for any liberty. Rawls never conceives of rights and liberties in terms of interpersonal solidarity, because this would breach his commitment to “rationality” and his emphasis on reciprocity. Thus, one ends up with a situation where rights never become actually effective. Rather, a rhetoric of rights and liberties is used to support a particular social order, conceived via high-level abstractions as maximising rights and liberties. The resulting “freedom” is a decidedly double-edged sword, and Rawls at times finds himself fighting an uphill battle to retrieve even those effective freedoms in which he actually believes. For instance, he only has the problems he has with conscientious refusal because of his tendency to conflate “liberty” with “obedience”. Otherwise, the right to refuse would be as basic as the right to participate.

Rawls’s discussion of rights and liberties reflects a broader tendency to reduce social relations to submission to a structure. Issues of relations between self and other, or between different people, can be addressed in a great many ways. Of these ways, Rawls adopts one and assumes it to be universally valid. He tends to reduce self-other relations to a shared submission, as if self and other can only relate via the judgemental gaze of a third party. As a result, social structures tend to be reduced to impersonal rules and procedures, and social relations are typified by a general alienation of all by all. James C. Scott suggests that this way of conceiving social relations is typical of elites, expressing an attempt to atomise subaltern strata by reducing them to individuals directly confronting a stronger superior (DAR ****). People are not, then, an “end” in such an approach, as Rawls would have one believe. Everyone becomes a means for the overall system (as the case of punishment, conceived as deterrence or as “guarantee” of the system, demonstrates). The “consideration for others” which results is simply a self-negating “consideration” which in fact subordinates actual others to the social system. It is an exclusionary consideration solely for normal others, imposed through a colonising imposition of sameness.



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