A theory of Justice: Revised Edition

The Concept of Representation,
ch. VIII, for an account of Burke’s view.
217
39. Priority of Liberty Defined

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liberties depends upon circumstances. We must, however, make sure that
the course of change being followed is such that social conditions will
eventually be brought about under which restrictions on these freedoms
are no longer justified. Their full achievement is, so to speak, the inherent
long-run tendency of a just system.
In these remarks I have assumed that it is always those with the lesser
liberty who must be compensated. We are always to appraise the situation
from their point of view (as seen from the constitutional convention or the
legislature). Now it is this restriction that makes it practically certain that
slavery and serfdom, in their familiar forms anyway, are tolerable only
when they relieve even worse injustices. There may be transition cases
where enslavement is better than current practice. For example, suppose
that city-states that previously have not taken prisoners of war but have
always put captives to death agree by treaty to hold prisoners as slaves in-
stead. Although we cannot allow the institution of slavery on the grounds
that the greater gains of some outweigh the losses to others, it may be that
under these conditions, since all run the risk of capture in war, this form
of slavery is less unjust than present custom. At least the servitude envis-
aged is not hereditary (let us suppose) and it is accepted by the free
citizens of more or less equal city-states. The arrangement seems defensi-
ble as an advance on established institutions, if slaves are not treated too
severely. In time it will presumably be abandoned altogether, since the
exchange of prisoners of war is a still more desirable arrangement, the
return of the captured members of the community being preferable to the
services of slaves. But none of these considerations, however fanciful,
tend in any way to justify hereditary slavery or serfdom by citing natural
or historical limitations. Moreover, one cannot at this point appeal to the
necessity or at least to the great advantage of these servile arrangements
for the higher forms of culture. As I shall argue later, the principle of
perfection would be rejected in the original position (§50).
The problem of paternalism deserves some discussion here, since it
has been mentioned in the argument for equal liberty, and concerns a
lesser freedom. In the original position the parties assume that in society
they are rational and able to manage their own affairs. Therefore they do
not acknowledge any duties to self, since this is unnecessary to further
their good. But once the ideal conception is chosen, they will want to
insure themselves against the possibility that their powers are undevel-
oped and they cannot rationally advance their interests, as in the case of
children; or that through some misfortune or accident they are unable to
218
Equal Liberty

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make decisions for their good, as in the case of those seriously injured or
mentally disturbed. It is also rational for them to protect themselves
against their own irrational inclinations by consenting to a scheme of
penalties that may give them a sufficient motive to avoid foolish actions
and by accepting certain impositions designed to undo the unfortunate
consequences of their imprudent behavior. For these cases the parties
adopt principles stipulating when others are authorized to act in their
behalf and to override their present wishes if necessary; and this they do
recognizing that sometimes their capacity to act rationally for their good
may fail, or be lacking altogether.
28
Thus the principles of paternalism are those that the parties would
acknowledge in the original position to protect themselves against the
weakness and infirmities of their reason and will in society. Others are
authorized and sometimes required to act on our behalf and to do what we
would do for ourselves if we were rational, this authorization coming into
effect only when we cannot look after our own good. Paternalistic deci-
sions are to be guided by the individual’s own settled preferences and
interests insofar as they are not irrational, or failing a knowledge of these,
by the theory of primary goods. As we know less and less about a person,
we act for him as we would act for ourselves from the standpoint of the
original position. We try to get for him the things he presumably wants
whatever else he wants. We must be able to argue that with the develop-
ment or the recovery of his rational powers the individual in question will
accept our decision on his behalf and agree with us that we did the best
thing for him.
The requirement that the other person in due course accepts his condi-
tion is not, however, by any means sufficient, even if this condition is not
open to rational criticism. Thus imagine two persons in full possession of
their reason and will who affirm different religious or philosophical be-
liefs; and suppose that there is some psychological process that will con-
vert each to the other’s view, despite the fact that the process is imposed
on them against their wishes. In due course, let us suppose, both will
come to accept conscientiously their new beliefs. We are still not permit-
ted to submit them to this treatment. Two further stipulations are neces-
sary: paternalistic intervention must be justified by the evident failure or
absence of reason and will; and it must be guided by the principles of
28. For a discussion of this problem see Gerald Dworkin, “Paternalism,” an essay in