A theory of Justice: Revised Edition

Leviathan,
chs. 13–18. And also Howard Warrender, 
The Political Philosophy of Hobbes
(Oxford, The Clarendon Press, 1957), ch. III; and D. P. Gauthier, 
The Logic of Leviathan
(Oxford,
The Clarendon Press, 1969), pp. 76–89.
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is obviously essential to define precisely the tendency of its operations.
Knowing what things it penalizes and knowing that these are within their
power to do or not to do, citizens can draw up their plans accordingly.
One who complies with the announced rules need never fear an infringe-
ment of his liberty.
It is clear from the preceding remarks that we need an account of penal
sanctions however limited even for ideal theory. Given the normal condi-
tions of human life, some such arrangements are necessary. I have main-
tained that the principles justifying these sanctions can be derived from
the principle of liberty. The ideal conception shows in this case anyway
how the nonideal scheme is to be set up; and this confirms the conjecture
that it is ideal theory which is fundamental. We also see that the principle
of responsibility is not founded on the idea that punishment is primarily
retributive or denunciatory. Instead it is acknowledged for the sake of
liberty itself. Unless citizens are able to know what the law is and are
given a fair opportunity to take its directives into account, penal sanctions
should not apply to them. This principle is simply the consequence of
regarding a legal system as an order of public rules addressed to rational
persons in order to regulate their cooperation, and of giving the appropri-
ate weight to liberty. I believe that this view of responsibility enables us
to explain most of the excuses and defenses recognized by the criminal
law under the heading of 
mens rea
and that it can serve as a guide to legal
reform. However, these points cannot be pursued here.
25
It suffices to note
that ideal theory requires an account of penal sanctions as a stabilizing
device and indicates the manner in which this part of partial compliance
theory should be worked out. In particular, the principle of liberty leads to
the principle of responsibility.
The moral dilemmas that arise in partial compliance theory are also to
be viewed with the priority of liberty in mind. Thus we can imagine
situations of an unhappy sort in which it may be permissible to insist less
strongly on the precepts of the rule of law being followed. For example,
in some extreme eventualities persons might be held liable for certain
offenses contrary to the precept ought implies can. Suppose that, aroused
by sharp religious antagonisms, members of rival sects are collecting
weapons and forming armed bands in preparation for civil strife. Con-
fronted with this situation the government may enact a statute forbidding
25. For these matters, consult H. L. A. Hart, 
Punishment and Responsibility
(Oxford, The Claren-
don Press, 1968), pp. 173–183, whom I follow here.
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Equal Liberty

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the possession of firearms (assuming that possession is not already an
offense). And the law may hold that sufficient evidence for conviction is
that the weapons are found in the defendant’s house or property, unless he
can establish that they were put there by another. Except for this proviso,
the absence of intent and knowledge of possession, and conformity to
reasonable standards of care, are declared irrelevant. It is contended that
these normal defenses would make the law ineffective and impossible to
enforce.
Now although this statute trespasses upon the precept ought implies
can it might be accepted by the representative citizen as a lesser loss of
liberty, at least if the penalties imposed are not too severe. (Here I assume
that imprisonment, say, is a drastic curtailment of liberty, and so the
severity of the contemplated punishments must be taken into account.)
Viewing the situation from the legislative stage, one may decide that the
formation of paramilitary groups, which the passing of the statute may
forestall, is a much greater danger to the freedom of the average citizen
than being held strictly liable for the possession of weapons. Citizens
may affirm the law as the lesser of two evils, resigning themselves to the
fact that while they may be held guilty for things they have not done, the
risks to their liberty on any other course would be worse. Since bitter
dissensions exist, there is no way to prevent some injustices, as we ordi-
narily think of them, from occurring. All that can be done is to limit these
injustices in the least unjust way.
The conclusion once again is that arguments for restricting liberty
proceed from the principle of liberty itself. To some degree anyway,
the priority of liberty carries over to partial compliance theory. Thus in
the situation discussed the greater good of some has not been balanced
against the lesser good of others. Nor has a lesser liberty been accepted
for the sake of greater economic and social benefits. Rather the appeal has
been to the common good in the form of the basic equal liberties of the
representative citizen. Unfortunate circumstances and the unjust designs
of some necessitate a much lesser liberty than that enjoyed in a well-or-
dered society. Any injustice in the social order is bound to take its toll; it
is impossible that its consequences should be entirely canceled out. In
applying the principle of legality we must keep in mind the totality of
rights and duties that defines the liberties and adjust its claims accord-
ingly. Sometimes we may be forced to allow certain breaches of its pre-
cepts if we are to mitigate the loss of freedom from social evils that can-
not be removed, and to aim for the least injustice that conditions allow.
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39. THE PRIORITY OF LIBERTY DEFINED
39. Priority of Liberty Defined
Aristotle remarks that it is a peculiarity of men that they possess a sense
of the just and the unjust and that their sharing a common understanding
of justice makes a polis.
26
Analogously one might say, in view of our
discussion, that a common understanding of justice as fairness makes a
constitutional democracy. For I have tried to show, after presenting fur-
ther arguments for the first principle, that the basic liberties of a demo-
cratic regime are most firmly secured by this conception of justice. In
each case the conclusions reached are familiar. My aim has been to
indicate not only that the principles of justice fit our considered judg-
ments but also that they provide the strongest arguments for freedom. By
contrast teleological principles permit at best uncertain grounds for lib-
erty, or at least for equal liberty. And liberty of conscience and freedom of
thought should not be founded on philosophical or ethical skepticism, nor
on indifference to religious and moral interests. The principles of justice
define an appropriate path between dogmatism and intolerance on the one
side, and a reductionism which regards religion and morality as mere
preferences on the other. And since the theory of justice relies upon
weak and widely held presumptions, it may win quite general acceptance.
Surely our liberties are most firmly based when they are derived from
principles that persons fairly situated with respect to one another can
agree to if they can agree to anything at all.
I now wish to examine more carefully the meaning of the priority of
liberty. I shall not argue here for this priority (leaving this aside until