Liberalism and the Limits of Justice 2 ed.


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On any close examination, it seems to fracture into a range of related but sometimes competing visions. In this entry we focus on debates within the liberal tradition. Must all political communities be liberal? Could a liberal coherently answer this question by saying No? Could a liberal coherently answer this question by saying Yes?

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In two ways, liberals accord liberty primacy as a political value. This might be called the Fundamental Liberal Principle Gaus, — : freedom is normatively basic, and so the onus of justification is on those who would use coercion to limit freedom. It follows from this that political authority and law must be justified, as they limit the liberty of citizens.

Consequently, a central question of liberal political theory is whether political authority can be justified, and if so, how. For this reason, social contract theory, as developed by Thomas Hobbes [] , John Locke [] , Jean-Jacques Rousseau [] and Immanuel Kant [] , is usually viewed as liberal even though the actual political prescriptions of, say, Hobbes and Rousseau, have distinctly illiberal features. Insofar as they take as their starting point a state of nature in which humans are free and equal, and so argue that any limitation of this freedom and equality must be justified i.

The Fundamental Liberal Principle holds that restrictions on liberty must be justified. Because he accepts this, we can understand Hobbes as part of the liberal tradition.


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In the culture at large, this view of the relation between citizen and king had been taking shape for centuries. The Magna Carta was a series of agreements, beginning in , arising out of disputes between the barons and King John. The Magna Carta eventually settled that the king is bound by the rule of law.

In , the Magna Carta was part of the beginning rather than the end of the argument, but by the mids, concepts of individual rights to trial by jury, due process, and equality before the law were more firmly established. Hobbes generally is treated as one of the first and greatest social contract thinkers. Typically, Hobbes also is seen as an advocate of unlimited monarchy.

This special end justifies almost any means, including drastic limitations on liberty. Yet, note the limitations implicit in the end itself. Hobbes, the famed absolutist, in fact developed a model of government sharply limited in this most important way. Paradigmatic liberals such as Locke not only advocate the Fundamental Liberal Principle, but also maintain that justified limitations on liberty are fairly modest. Only a limited government can be justified; indeed, the basic task of government is to protect the equal liberty of citizens.

Liberals disagree, however, about the concept of liberty, and as a result the liberal ideal of protecting individual liberty can lead to different conceptions of the task of government. Isaiah Berlin famously advocated a negative conception of liberty:.


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  • So understood, negative liberty is an opportunity-concept. Being free is a matter of what options are left open to us, regardless of whether we exercise such options Taylor, Nevertheless, Green went on to claim that a person can be unfree if he is subject to an impulse or craving that cannot be controlled. Just as a slave is not doing what he really wants to do, one who is, say, an alcoholic, is being led by a craving to look for satisfaction where it cannot, ultimately, be found. For Green, a person is free only if she is self-directed or autonomous.

    Liberalism and the Limits of Justice (2nd ed.)

    Running throughout liberal political theory is an ideal of a free person as one whose actions are in some sense her own. In this sense, positive liberty is an exercise-concept. Such a person is not subject to compulsions, critically reflects on her ideals and so does not unreflectively follow custom, and does not ignore her long-term interests for short-term pleasures. And today it is a dominant strain in liberalism, as witnessed by the work of S.

    In the words of the British socialist R. On this positive conception, a person not prohibited from being a member of a Country Club but too poor to afford membership is not free to be a member: she lacks an effective power to act.

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    Positive freedom qua effective power to act closely ties freedom to material resources. Education, for example, should be easily available so that all can develop their capacities.

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    An older notion of liberty that has recently resurfaced is the republican, or neo-Roman, conception of liberty, which has roots in the writings of Cicero and Niccolo Machiavelli []. According to Philip Pettit,. On this view, the opposite of freedom is domination. The ideal liberty-protecting government, then, ensures that no agent, including itself, has arbitrary power over any citizen. This is accomplished through an equal disbursement of power. Each person has power that offsets the power of another to arbitrarily interfere with her activities Pettit, The republican conception of liberty is certainly distinct from both Greenian positive and negative conceptions.

    When all dominating power has been dispersed, republican theorists are generally silent about these goals Larmore Thus, in contrast to the ordinary negative conception, on the republican conception the mere possibility of arbitrary interference is a limitation of liberty. Republican liberty thus seems to involve a modal claim about the possibility of interference, and this is often cashed out in terms of complex counterfactual claims.

    It is not clear whether these claims can be adequately explicated Gaus, ; cf. Larmore, Some republican theorists, such as Quentin Skinner , Maurizio Viroli 6 and Pettit 8—11 , view republicanism as an alternative to liberalism. When republican liberty is seen as a basis for criticizing market liberty and market society, this is plausible Gaus, b.

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    However, when liberalism is understood more expansively, and not so closely tied to either negative liberty or market society, republicanism becomes indistinguishable from liberalism Ghosh, ; Rogers, ; Larmore, ; Dagger, Liberal political theory, then, fractures over the conception of liberty.

    In practice, another crucial fault line concerns the moral status of private property and the market order. From the eighteenth century right up to today, classical liberals have insisted that an economic system based on private property is uniquely consistent with individual liberty, allowing each to live her life —including employing her labor and her capital — as she sees fit. Indeed, classical liberals and libertarians have often asserted that in some way liberty and property are really the same thing; it has been argued, for example, that all rights, including liberty rights, are forms of property; others have maintained that property is itself a form of freedom Gaus, ; Steiner, A market order based on private property is thus seen as an embodiment of freedom Robbins, Unless people are free to make contracts and sell their labour, save and invest their incomes as they see fit, and free to launch enterprises as they raise the capital, they are not really free.

    Classical liberals employ a second argument connecting liberty and private property. Here the idea is that the dispersion of power that results from a free market economy based on private property protects the liberty of subjects against encroachments by the state. Although classical liberals agree on the fundamental importance of private property to a free society, the classical liberal tradition itself is a spectrum of views, from near-anarchist to those that attribute a significant role to the state in economic and social policy on this spectrum, see Mack and Gaus, Most nineteenth century classical liberal economists endorsed a variety of state policies, encompassing not only the criminal law and enforcement of contracts, but the licensing of professionals, health, safety and fire regulations, banking regulations, commercial infrastructure roads, harbors and canals and often encouraged unionization Gaus, b.

    Although classical liberalism today often is associated with libertarianism, the broader classical liberal tradition was centrally concerned with bettering the lot of the working class, women, blacks, immigrants, and so on.

    The aim, as Bentham put it, was to make the poor richer, not the rich poorer Bentham, []: vol. Consequently, classical liberals treat the leveling of wealth and income as outside the purview of legitimate aims of government coercion. Three factors help explain the rise of this revisionist theory. Believing that a private property based market tended to be unstable, or could, as Keynes argued [] , get stuck in an equilibrium with high unemployment, new liberals came to doubt, initially in empirical grounds, that classical liberalism was an adequate foundation for a stable, free society.

    Here the second factor comes into play: just as the new liberals were losing faith in the market, their faith in government as a means of supervising economic life was increasing. This was partly due to the experiences of the First World War, in which government attempts at economic planning seemed to succeed Dewey, —60 ; more importantly, this reevaluation of the state was spurred by the democratization of western states, and the conviction that, for the first time, elected officials could truly be, in J.

    Ritchie proclaimed:.


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    • They entrench a merely formal equality that in actual practice systematically fails to secure the kind of equal positive liberty that matters on the ground for the working class. And in his Principles of Political Economy Mill consistently emphasized that it is an open question whether personal liberty can flourish without private property , vol. For Rawls, the default is an equal distribution of basically income and wealth; only inequalities that best enhance the long-term prospects of the least advantaged are just. As Rawls sees it, the difference principle constitutes a public recognition of the principle of reciprocity: the basic structure is to be arranged such that no social group advances at the cost of another — Many followers of Rawls have focused less on the ideal of reciprocity than on the commitment to equality Dworkin, And in one way that is especially appropriate: in his later work Rawls insists that welfare-state capitalism does not constitute a just basic structure — Then someone offers Wilt Chamberlain a dollar for the privilege of watching Wilt play basketball.

      Before we know it, thousands of people are paying Wilt a dollar each, every time Wilt puts on a show. Wilt gets rich. The distribution is no longer equal, and no one complains. Must you then prohibit everything—no further consuming, creating, trading, or even giving —so as not to upset the perfect pattern? Notice: Nozick neither argues nor presumes people can do whatever they want with their property.

      Nozick, recalling the focus on connecting property rights to liberty that animated liberalism in its classical form, notes that if there is anything at all people can do, even if the only thing they are free to do is give a coin to an entertainer, then even that tiniest of liberties will, over time, disturb the favored pattern. Nozick is right that if we focus on time slices, we focus on isolated moments, and take moments too seriously, when what matters is not the pattern of holdings at a moment but the pattern of how people treat each other over time.

      Even tiny liberties must upset the pattern of a static moment.

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      By the same token, however, there is no reason why liberty must upset an ongoing pattern of fair treatment. A moral principle forbidding racial discrimination, for example, prescribes no particular end-state. Such a principle is what Nozick calls weakly patterned, sensitive to history as well as to pattern, and prescribing an ideal of how people should be treated without prescribing an end-state distribution. It affects the pattern without prescribing a pattern. And if a principle forbidding racial discrimination works its way into a society via cultural progress rather than legal intervention, it need not involve any interference whatsoever.

      Liberalism and the Limits of Justice 2 ed. Liberalism and the Limits of Justice 2 ed.
      Liberalism and the Limits of Justice 2 ed. Liberalism and the Limits of Justice 2 ed.
      Liberalism and the Limits of Justice 2 ed. Liberalism and the Limits of Justice 2 ed.
      Liberalism and the Limits of Justice 2 ed. Liberalism and the Limits of Justice 2 ed.
      Liberalism and the Limits of Justice 2 ed. Liberalism and the Limits of Justice 2 ed.
      Liberalism and the Limits of Justice 2 ed. Liberalism and the Limits of Justice 2 ed.

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