Abstract
Recent arguments for the basic status of economic liberty can be deployed to show that all liberty is basic. The argument for the basic status of all liberty is as follows. First, John Tomasi’s defense of basic economic liberties is successful. Economic freedom can be further defended against powerful high liberal objections, which libertarians including Tomasi have so far overlooked. Yet arguments for basic economic freedom raise a puzzle about the distinction between basic and non-basic liberties. The same reasons that economic liberties and the traditionally defined list of basic liberties are basic can also be given for all other liberties. Therefore, high liberals and Rawlsian libertarians ought to accept almost all other liberties as basic, even liberties that may strike us as trivial, silly, or unimportant. This claim has revisionary implications for high liberalism. Namely, liberals should endorse strong institutional protections for almost all liberties, even at the expense of other social values.
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Notes
I am using the terms ‘liberal egalitarian’ and ‘high liberal’ to be very inclusive. These terms include those philosophers who defend strong protections for some personal freedoms and also endorse egalitarian welfare rights. See for example the work of John Rawls, Thomas Nagel, Samuel Freeman, Joshua Cohen, and Ronald Dworkin.
Tomasi writes, ‘In seeking the most appropriate specification of the basic rights and liberties, we seek the specification that most fully allows citizens to develop themselves as responsible self-authors…’ (Tomasi 2012, p. 82, emphasis added).
De Marneffe (2009) argues that just institutions ought to protect women’s ability to form lasting healthy relationships, even if that ability is not important for their development as citizens, their sense of justice, or conception of the good.
Jeppe Von Platz (2014) suggests that this strategy may be successful at distinguishing economic liberties from other freedoms.
I am grateful to two anonymous reviewers for prompting me to consider these criteria for basic liberties.
As cited in (Tomasi 2012, p. 49).
The Heritage Foundation ranks countries’ economic freedom based on trade freedom, business and investment freedom, and property rights. The top six countries all provide social security and disability payments and subsidized health services for their poorest citizens (Heritage Foundation 2012).
At this point it may be helpful to quickly describe the rest of the high liberal vision. Rawls and other high liberals argue that a just society is one that can be impartially justified to those within it. Such a society would not structurally advantage any particular kind of citizen. Rather, it would conform to two principles. First, that each person enjoys the same protections for a fully adequate scheme of basic liberties. Second, social and economic inequalities must (a) attach to offices and positions open to all under conditions of fair equality of opportunity, and (b) function to the greatest benefit of the least-advantaged members of society (the difference principle). Crucially, the first principle takes lexical priority over the second; the second principle can only be satisfied within the limits of the first. Yet the first principle is not conceptually prior to the second. Representatives in the original position might choose not to include economic liberty as basic if protecting economic liberties undermines a state’s ability to implement the difference principle.
Basic liberties must also satisfy the strains of commitment, meaning that actual citizens must be able to live in good conscience in accordance with whatever liberties are defined as basic. This is why, for example, freedom of religion is protected. While an impartial decision procedure might arrive at a blanket prohibition on all religions, actual citizens could not accept this kind of institution.
A similar point may apply to religious accommodation as well, insofar as it amounts to more than a right against religious interference. For the sake of this argument, one could conceive of basic liberties strictly as protections from interference or as requiring more public support. My argument is only that there ought to be the same standards of inclusion for canonically basic liberties and liberties that have been considered non-basic.
Just as impartial institutions would not advantage people who have greater social or economic power in society, they also would not advantage people whose tastes are more widespread and disadvantage those with idiosyncratic interests.
Narveson (2001) suggests something like this in arguing for a similar view. He argues that everyone has a basic general right of liberty, and that specific negative liberties are not distinctively different in kind from other negative liberties.
As an aside, I believe that high liberals should also endorse the basic status even of those liberties that reliably undermine autonomous capacities, though I have not argued for this conclusion here. To accept a view that says otherwise seems to entail also that too many potentially undermining liberties are non-basic: for example a religion that culturally undervalues education and thereby compromises members’ autonomous development.
For example, in his Notes on the state of Virginia, Thomas Jefferson defended the basic status of freedom of conscience with an appeal to the then-basic right of self-medication. Today, self-medication is not considered basic but conscience is, but at the time critics of freedom of conscience argued that it was less fundamental than bodily rights. (Jefferson and Shuffelton 1999).
High liberals might resist these revisionary implications on the grounds that representative institutional designers in the original position would not agree to characterizing the other liberties as basic, but there is support for such a move within the high liberal tradition, namely that Rawls believed that representatives in the original position would also protect some liberties as basic as part of the strains of commitment. Additionally, high liberals already agree that non-basic liberties should also be institutionally protected to some extent, where protections would promote the second principle of justice (Freeman 2007, p. 82; Rawls 2005b, p. 363).
Whatever it would take for something to be supported by public reason, political liberals agree that purely perfectionist reasons cannot permissibly justify restrictions on liberties (Rawls 2005b).
As Jonathan Quong points out, high liberalism places almost overriding weight on the value of autonomy, but many people may not value the act of choosing. Quong thus concludes that this approach ‘requires us to accept a very specific view of the good life, one that many reasonable people do not appear to share’ (Quong 2011, p. 99).
De Marneffe says that these paternalistic frameworks should not be called perfectionism at all, or that so defined this kind of perfectionism is not objectionable because the protection and promotion of some objective human interests is a legitimate and inescapable aim of government (De Marneffe 2009, p. 151).
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Flanigan, J. All Liberty is Basic. Res Publica 24, 455–474 (2018). https://doi.org/10.1007/s11158-017-9368-z
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DOI: https://doi.org/10.1007/s11158-017-9368-z