A theory of Justice: Revised Edition

On Liberty,
ch. I, par. 11. Originally I read the passage as “the permanent interests of a man,”
following a number of editions. I am grateful to David Spitz for telling me that Mill almost certainly
wrote “man” and not “a man,” and therefore the later variant, stemming from an early low-priced
edition, is very probably a typesetter’s error. I have revised the text accordingly. For the choice
criterion of value, see 
Utilitarianism,
ch. II, pars. 2–10. I heard this interpretation stated by G. A. Paul
(1953) and am indebted to his remarks.
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tutions have value in themselves as basic aspects of rationally preferred
forms of life.
8
These are certainly forceful arguments and under some circumstances
anyway they might justify many if not most of the equal liberties. They
clearly guarantee that in favorable conditions a considerable degree of
liberty is a precondition of the rational pursuit of value. But even Mill’s
contentions, as cogent as they are, will not, it seems, justify an equal
liberty for all. We still need analogues of familiar utilitarian assumptions.
One must suppose a certain similarity among individuals, say their equal
capacity for the activities and interests of men as progressive beings, and
in addition a principle of the diminishing marginal value of basic rights
when assigned to individuals. In the absence of these presumptions the
advancement of human ends may be compatible with some persons’
being oppressed, or at least granted but a restricted liberty. Whenever a
society sets out to maximize the sum of intrinsic value or the net balance
of the satisfaction of interests, it is liable to find that the denial of liberty
for some is justified in the name of this single end. The liberties of equal
citizenship are insecure when founded upon teleological principles. The
argument for them relies upon precarious calculations as well as contro-
versial and uncertain premises.
Moreover, nothing is gained by saying that persons are of equal intrin-
sic value unless this is simply a way of using the standard assumptions as
if they were part of the principle of utility. That is, one applies this
principle as if these assumptions were true. Doing this certainly has the
merit of recognizing that we have more confidence in the principle of
equal liberty than in the truth of the premises from which a perfectionist
or utilitarian view would derive it. The grounds for this confidence, ac-
cording to the contract view, is that the equal liberties have a different
basis altogether. They are not a way of maximizing the sum of intrinsic
value or of achieving the greatest net balance of satisfaction. The notion
of maximizing a sum of value by adjusting the rights of individuals does
not arise. Rather these rights are assigned to fulfill the principles of
cooperation that citizens would acknowledge when each is fairly repre-
sented as a moral person. The conception defined by these principles is
not that of maximizing anything, except in the vacuous sense of best
meeting the requirements of justice, all things considered.
8. These three grounds are found in 
On Liberty,
ch. III. They are not to be confused with the
reasons Mill gives elsewhere, in ch. II for example, which urge the beneficial effects of free
institutions.
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33. Equal Liberty of Conscience

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34. TOLERATION AND THE COMMON INTEREST
34. Toleration and the Common Interest
Justice as fairness provides, as we have now seen, strong arguments for
an equal liberty of conscience. I shall assume that these arguments can be
generalized in suitable ways to support the principle of equal liberty.
Therefore the parties have good grounds for adopting this principle. It is
obvious that these considerations are also important in making the case
for the priority of liberty. From the perspective of the constitutional
convention these arguments lead to the choice of a regime guaranteeing
moral liberty and freedom of thought and belief, and of religious practice,
although these may be regulated as always by the state’s interest in public
order and security. The state can favor no particular religion and no
penalties or disabilities may be attached to any religious affiliation or lack
thereof. The notion of a confessional state is rejected. Instead, particular
associations may be freely organized as their members wish, and they
may have their own internal life and discipline subject to the restriction
that their members have a real choice of whether to continue their affilia-
tion. The law protects the right of sanctuary in the sense that apostasy is
not recognized, much less penalized, as a legal offense, any more than is
having no religion at all. In these ways the state upholds moral and
religious liberty.
Liberty of conscience is limited, everyone agrees, by the common
interest in public order and security. This limitation itself is readily deriv-
able from the contract point of view. First of all, acceptance of this
limitation does not imply that public interests are in any sense superior to
moral and religious interests; nor does it require that government view
religious matters as things indifferent or claim the right to suppress philo-
sophical beliefs whenever they conflict with affairs of state. The govern-
ment has no authority to render associations either legitimate or illegiti-
mate any more than it has this authority in regard to art and science.
These matters are simply not within its competence as defined by a just
constitution. Rather, given the principles of justice, the state must be
understood as the association consisting of equal citizens. It does not
concern itself with philosophical and religious doctrine but regulates in-
dividuals’ pursuit of their moral and spiritual interests in accordance with
principles to which they themselves would agree in an initial situation of
equality. By exercising its powers in this way the government acts as the
citizens’ agent and satisfies the demands of their public conception of
justice. Therefore the notion of the omnicompetent laicist state is also
denied, since from the principles of justice it follows that government has
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neither the right nor the duty to do what it or a majority (or whatever)
wants to do in questions of morals and religion. Its duty is limited to
underwriting the conditions of equal moral and religious liberty.
Granting all this, it now seems evident that, in limiting liberty by
reference to the common interest in public order and security, the govern-
ment acts on a principle that would be chosen in the original position. For
in this position each recognizes that the disruption of these conditions is a
danger for the liberty of all. This follows once the maintenance of public
order is understood as a necessary condition for everyone’s achieving his
ends whatever they are (provided they lie within certain limits) and for
his fulfilling his interpretation of his moral and religious obligations. To
restrain liberty of conscience at the boundary, however inexact, of the
state’s interest in public order is a limit derived from the principle of the
common interest, that is, the interest of the representative equal citizen.
The government’s right to maintain public order and security is an ena-
bling right, a right which the government must have if it is to carry out its
duty of impartially supporting the conditions necessary for everyone’s
pursuit of his interests and living up to his obligations as he understands
them.
Furthermore, liberty of conscience is to be limited only when there is a
reasonable expectation that not doing so will damage the public order
which the government should maintain. This expectation must be based
on evidence and ways of reasoning acceptable to all. It must be supported
by ordinary observation and modes of thought (including the methods of
rational scientific inquiry where these are not controversial) which are
generally recognized as correct. Now this reliance on what can be estab-
lished and known by everyone is itself founded on the principles of
justice. It implies no particular metaphysical doctrine or theory of knowl-
edge. For this criterion appeals to what everyone can accept. It represents
an agreement to limit liberty only by reference to a common knowledge
and understanding of the world. Adopting this standard does not infringe
upon anyone’s equal freedom. On the other hand, a departure from gener-
ally recognized ways of reasoning would involve a privileged place for
the views of some over others, and a principle which permitted this could
not be agreed to in the original position. Furthermore, in holding that the
consequences for the security of public order should not be merely possi-
ble or in certain cases even probable, but reasonably certain or imminent,
there is again no implication of a particular philosophical theory. Rather
this requirement expresses the high place which must be accorded to
liberty of conscience and freedom of thought.
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34. Toleration and the Common Interest

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We may note at this point an analogy with the method of making
interpersonal comparisons of well-being. These are founded on the index
of primary goods that one may reasonably expect (§15), primary goods
being those which everyone is presumed to want. This basis of compari-
son is one to which the parties can agree for the purposes of social justice.
It does not require subtle estimates of men’s capacity for happiness, much
less of the relative worth of their plans of life. We need not question the
meaningfulness of these notions; but they are inappropriate for designing
just institutions. Similarly, the parties consent to publicly recognized
criteria to determine what counts as evidence that their equal liberty is
pursued in ways injurious to the common interest in public order and to
the liberty of others. These principles of evidence are adopted for the
aims of justice; they are not intended to apply to all questions of meaning
and truth. How far they are valid in philosophy and science is a separate
matter.
The characteristic feature of these arguments for liberty of conscience
is that they are based solely on a conception of justice. Toleration is not
derived from practical necessities or reasons of state. Moral and religious
freedom follows from the principle of equal liberty; and assuming the
priority of this principle, the only ground for denying the equal liberties is
to avoid an even greater injustice, an even greater loss of liberty. More-
over, the argument does not rely on any special metaphysical or philo-
sophical doctrine. It does not presuppose that all truths can be established
by ways of thought recognized by common sense; nor does it hold that
everything is, in some definable sense, a logical construction out of what
can be observed or evidenced by rational scientific inquiry. The appeal is
indeed to common sense, to generally shared ways of reasoning and plain
facts accessible to all, but it is framed in such a way as to avoid these
larger presumptions. Nor, on the other hand, does the case for liberty
imply skepticism in philosophy or indifference to religion. Perhaps argu-
ments for liberty of conscience can be given that have one or more of
these doctrines as a premise. There is no reason to be surprised at this,
since different arguments can have the same conclusion. But we need
not pursue this question. The case for liberty is at least as strong as
its strongest argument; the weak and fallacious ones are best forgotten.
Those who would deny liberty of conscience cannot justify their action
by condemning philosophical skepticism and indifference to religion, nor
by appealing to social interests and affairs of state. The limitation of
liberty is justified only when it is necessary for liberty itself, to prevent an
invasion of freedom that would be still worse.
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The parties in the constitutional convention, then, must choose a con-
stitution that guarantees an equal liberty of conscience regulated solely
by forms of argument generally accepted, and limited only when such
argument establishes a reasonably certain interference with the essentials
of public order. Liberty is governed by the necessary conditions for lib-
erty itself. Now by this elementary principle alone many grounds of
intolerance accepted in past ages are mistaken. Thus, for example, Aqui-
nas justified the death penalty for heretics on the ground that it is a far
graver matter to corrupt the faith, which is the life of the soul, than to
counterfeit money which sustains life. So if it is just to put to death
forgers and other criminals, heretics may a fortiori be similarly dealt
with.
9
But the premises on which Aquinas relies cannot be established by
modes of reasoning commonly recognized. It is a matter of dogma that
faith is the life of the soul and that the suppression of heresy, that is,
departures from ecclesiastical authority, is necessary for the safety of
souls.
Again, the reasons given for limited toleration often run afoul of this
principle. Thus Rousseau thought that people would find it impossible to
live in peace with those whom they regarded as damned, since to love
them would be to hate God who punishes them. He believed that those
who regard others as damned must either torment or convert them, and
therefore sects preaching this conviction cannot be trusted to preserve
civil peace. Rousseau would not, then, tolerate those religions which say
that outside the church there is no salvation.
10
But the consequences of
such dogmatic belief which Rousseau conjectures are not borne out by
experience. A priori psychological argument, however plausible, is not
sufficient to abandon the principle of toleration, since justice holds that
the disturbance to public order and to liberty itself must be securely
established by common experience. There is, however, an important dif-
ference between Rousseau and Locke, who advocated a limited tolera-
tion, and Aquinas and the Protestant Reformers who did not.
11
Locke and
Rousseau limited liberty on the basis of what they supposed were clear
and evident consequences for the public order. If Catholics and atheists
were not to be tolerated it was because it seemed evident that such per-
9.