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Though historically important in the evolution of justice theory, liberalism has evidenced limitations in providing a clear foundation for a just and equitable society. Rights set forth in liberal theory are related to each other by their common foundation in the freedom of the individual person to choose desired ends within the confines of designated policies and laws. However, to restrict these fundamental rights, that is, the right of the person not to be impeded in the pursuit of his or her happiness, is to attack individual liberty—the foundation of liberalism. For John Locke, one of the originators of the liberal rights doctrine, the natural state of humanity is the foundation of all legitimate political power, which for Locke is “a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they see fit, within the bounds of the law of nature, without asking leave, or depending on the will of any other man.”
Within the same tradition, H. L. A. Hart has argued that if rights exist, they are ramifications and extrapolations of individual freedom. In Hart’s view, constitutional and moral rights are rooted in the fundamental right to liberty. Thus he states, “If there are any moral rights at all, it follows that there is at least one natural right, the equal right of all to be free. By saying that there is this right, I mean that in the absence of certain special conditions which are consistent with the right being an equal right, any adult human being capable of choice (1) has the right to forbearance on the part of all others from the use of coercion or restraint against him save to hinder coercion or restraint and (2) is at liberty to do (i.e., is under no obligation to abstain from) any action which is not one coercing or restraining or designed to injure other persons.” Consequently for Hart, rights are negative.
While this is not the case for every liberal apologist, it is the general tendency of this system. Rights are the boundaries and parameters around which an individual acts, speaks, associates, accumulates wealth and determines his destiny without restriction by the positive action of other persons or the state. Duties corresponding to rights in this theory are also negative, rather than positive, in content. Any action is protected by right “which is not one coercing or restraining or designed to injure other persons.” For John Stuart Mill, however, this excludes preventing others from doing as they like, unless they are determined to abolish liberty itself. The development of the “harm principle,” in On Liberty, excludes, in Mill’s estimation, attempts to restrict the liberty of others by force or threat of force while it rules out killing (except for self-defense) and slavery. However, Hart notes that Mill’s liberal theory does not rule out competition, “even though in fact, owing to scarcity, one man’s satisfaction causes another’s frustration.”
Other liberal strategies have been offered for promoting social justice, such as John Rawls’ work in A Theory of Justice. The major justification for liberal society, according to Rawls, is based on the premise that human rights are to be defined in terms of the maximum amount of freedom and autonomy for all persons as long as the most needy in any society are helped in this process. Thus, for Rawls, justice must benefit all in some way. Other liberals (such as Hart), in their critique of Rawls, are prepared to admit that it may be naïve or pretentious for Rawls to exhort starving persons to maximize their freedom by eating whatever food they can earn or find. The implication here is that liberties of certain well-off people or corporations may have to be curtailed to some degree to help the poor. In response to this criticism, Rawls is willing to acknowledge that the provisions of a system of equal civil liberties will be of no less value to the poor, and that these
liberties can be negotiated to advance the cause of those most in need. Rawls states, “The denial of equal liberty can be accepted only if it is necessary to enhance the quality of civilization so that in due course the equal freedoms can be enjoyed by all.” And while casting doubts on libertarian notions of justice in the case of Robert Nozick’s Anarchy, State, and Utopia, (i.e., the maximum amount of economic liberty will provide basic human needs for all), Rawls nevertheless believes that certain rights can be constructed in society in order to maintain a minimum standard of living for the poor. However, this reconstruction is in no way absolute for Rawls who states, “To be sure, it is not the case that when the priority of liberty holds, all material wants are satisfied. Rather these desires are not so compelling as to make it rational for persons in the original position to agree to satisfy them by accepting a less than equal freedom. The account of the good enables the parties to work out a hierarchy among their several interests and to note which kinds of ends should be regulative in their rational plans of life. Until the basic wants of individuals can be fulfilled, the relative urgency of their interest in liberty cannot be firmly decided in advance. It will depend on the claims of the least favored as seen from the constitutional and legislative stages.”
Rawls claims that he is essentially describing, at least theoretically, the way justice should be promoted in America and by constitutional decree. The heart of this theory is based on procedural “fairness” which contains two basic principles. Known as the “difference principle,” the first claims basic equal liberties for all. The second asserts an equality which negotiates or conditions fairness in that “social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged and (b) attached to positions open to all under conditions of fair equality and opportunity.” Here, it is important to keep in mind, Rawls stipulates that his notion of liberty is restricted to the equal right to vote, eligibility for public office, freedom of speech and assembly, freedom of conscience and thought, the right to own property, and the freedom from arbitrary arrest and seizure. On the other hand, Rawls excludes economic freedoms such as the freedom to own productive property, freedom of contract, freedom to appropriate what one has produced, freedom to inherit or to leave one’s possessions to persons of one’s choice. In sum, economic freedoms for Rawls do not constitute basic liberties and rights.
Even with the introduction of the “difference principle” into liberalism, Rawls has failed to some degree to definitively guarantee the rights of marginalized persons. In effect, Rawls has thus reinforced the liberal ethos embedded in capitalism. However, in “Fairness to Goodness,” Rawls contends that there are cogent arguments which, if true and factual, would lead to the conclusion that capitalism and his notion of justice are incompatible. This admission by Rawls effectively opens the way to remediating liberal theory and supporting a more radically egalitarian system. In extrapolating upon this notion, Robert Admur has developed three arguments which would necessitate that Rawls’ theory of justice as fairness, based on the “difference principle” would lead to socialist remedies. Admur essentially argues: (1) the Rawlsian principles of justice would require some sort of socialism if the stability of a well-ordered society could be achieved in no other way; (2) the principles of justice would require some sort of socialism if the self-respect of the worst-off could be achieved in no other, or if the fair value of liberty could be protected in no other way, or if fair equality of opportunity could be achieved in no other way; (3) assuming that capitalism and socialism are equally acceptable in terms of their effects on self-respect, liberty and equal opportunity, then the principles of justice would require socialism if a socialist economy were capable of providing the worst-off with a higher level of wealth and income than could be provided under any other system. Admur contends that the Rawlsian formulation of justice—that is, justice as fairness based on the “difference principle”—can be fulfilled only in a democratic socialist economy. Thus, Rawls’ theory makes greater sense if it is understood and implemented as an integral part of a socialist system, precisely because liberal theory fails, as argued earlier, to definitively prioritize the economic liberties and rights, especially of the poor and marginalized.
Marxist and Catholic traditions reject, for the most part, Rawls’ and liberalism’s attempt to justify the division of the general conception of justice into two principles: one governing the sphere of political freedoms and the other governing the distribution of wealth, economic opportunity, and social participation. Where liberal democratic rights theory grants primacy to the individual’s negative immunity from interference or political coercion, Marxist and Catholic theories of human rights stresses positive entitlements to participate fully in the public life of society, along with the right of workers to own and control the means of production. Social and economic rights, in particular the right to work and the acquisition of basic necessities, are preeminent in both traditions whereas, in Rawlsian terms, these rights are not guaranteed. While Rawls’ “difference principle” attempts to soften and complement the one-dimensional nature of negative rights, liberalism, for Rawls, nevertheless insists on the presupposition that individual autonomy is the decisive factor in understanding rights and human dignity. It is in this sense Rawlsian liberalism fails to adequately construct a theory of positive rights.
Yet, the centrality of socio-economic rights for Marxism and Catholic social justice is based on its conviction that freedom is both negative and positive, individual and social. This social reality cannot be achieved by an individual acting in isolation but rather in solidarity with others, which requires freedom understood as solidarity, participation, contribution to the common good, and self-determination in social life, especially for the poor. Moreover, freedom to obtain basic needs is founded on the dignity of the human person, which is a concern shared equally by Catholic social teaching and Marxist praxis. Solidarity in both traditions thus prioritizes basic human needs and rights better than liberalism.
Edward Martin is Professor of Public Policy and Administration, Graduate Center for Public Policy and Administration at California State University, Long Beach, and co-author of Savage State: Welfare Capitalism and Inequality..
Mateo Pimentel lives on the Mexican-US border. You can follow him on Twitter @mateo_pimentel, or read more at www.guerrillaprose.info.