A theory of Justice: Revised Edition

The Concept of Law
(Oxford, The
Clarendon Press, 1961), pp. 156, 202.
23. It may be disputed whether this view holds for all rights, for example, the right to pick up an
unclaimed article. See Hart in 
Philosophical Review,
vol. 64, p. 179. But perhaps it is true enough for
our purposes here. While some of the basic rights are similarly competition rights, as we may call
them—for example, the right to participate in public affairs and to influence the political decisions
taken—at the same time everyone has a duty to conduct himself in a certain way. This duty is one of
fair political conduct, so to speak, and to violate it is a kind of interference. As we have seen, the
constitution aims to establish a framework within which equal political rights fairly pursued and
having their fair value are likely to lead to just and effective legislation. When appropriate we can
interpret the statement in the text along these lines. On this point see Richard Wollheim, “Equality,”
Proceedings of the Aristotelian Society,
vol. 56 (1955–1956), pp. 291ff. Put another way, the right can
be redescribed as the right to try to do something under specified circumstances, these circumstances
allowing for the fair rivalry of others. Unfairness becomes a characteristic form of interference.
210
Equal Liberty

---

to establish for themselves the greatest equal liberty. To be confident in
the possession and exercise of these freedoms, the citizens of a well-or-
dered society will normally want the rule of law maintained.
We can arrive at the same conclusion in a slightly different way. It is
reasonable to assume that even in a well-ordered society the coercive
powers of government are to some degree necessary for the stability of
social cooperation. For although men know that they share a common
sense of justice and that each wants to adhere to the existing arrange-
ments, they may nevertheless lack full confidence in one another. They
may suspect that some are not doing their part, and so they may be
tempted not to do theirs. The general awareness of these temptations may
eventually cause the scheme to break down. The suspicion that others are
not honoring their duties and obligations is increased by the fact that, in
the absence of the authoritative interpretation and enforcement of the
rules, it is particularly easy to find excuses for breaking them. Thus even
under reasonably ideal conditions, it is hard to imagine, for example, a
successful income tax scheme on a voluntary basis. Such an arrangement
is unstable. The role of an authorized public interpretation of rules sup-
ported by collective sanctions is precisely to overcome this instability. By
enforcing a public system of penalties government removes the grounds
for thinking that others are not complying with the rules. For this reason
alone, a coercive sovereign is presumably always necessary, even though
in a well-ordered society sanctions are not severe and may never need to
be imposed. Rather, the existence of effective penal machinery serves as
men’s security to one another. This proposition and the reasoning behind
it we may think of as Hobbes’s thesis
24
(§42).
Now in setting up such a system of sanctions the parties in a constitu-
tional convention must weigh its disadvantages. These are of at least two
kinds: one kind is the cost of maintaining the agency covered say by
taxation; the other is the danger to the liberty of the representative citizen
measured by the likelihood that these sanctions will wrongly interfere
with his freedom. The establishment of a coercive agency is rational only
if these disadvantages are less than the loss of liberty from instability.
Assuming this to be so, the best arrangement is one that minimizes these
hazards. It is clear that, other things equal, the dangers to liberty are less
when the law is impartially and regularly administered in accordance
with the principle of legality. While a coercive mechanism is necessary, it
24. See