A theory of Justice: Revised Edition

parties do not know how their religious or moral view fares in their
society, whether, for example, it is in the majority or the minority. All
they know is that they have obligations which they interpret in this way.
The question they are to decide is which principle they should adopt to
regulate the liberties of citizens in regard to their fundamental religious,
moral, and philosophical interests.
Now it seems that equal liberty of conscience is the only principle that
the persons in the original position can acknowledge. They cannot take
chances with their liberty by permitting the dominant religious or moral
doctrine to persecute or to suppress others if it wishes. Even granting
(what may be questioned) that it is more probable than not that one will
turn out to belong to the majority (if a majority exists), to gamble in this
way would show that one did not take one’s religious or moral convic-
tions seriously, or highly value the liberty to examine one’s beliefs. Nor
on the other hand, could the parties consent to the principle of utility. In
this case their freedom would be subject to the calculus of social interests
and they would be authorizing its restriction if this would lead to a greater
net balance of satisfaction. Of course, as we have seen, a utilitarian may
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try to argue from the general facts of social life that when properly
carried out the computation of advantages never justifies such limitations,
at least under reasonably favorable conditions of culture. But even if the
parties were persuaded of this, they might as well guarantee their freedom
straightway by adopting the principle of equal liberty. There is nothing
gained by not doing so, and to the extent that the outcome of the actuarial
calculation is unclear a great deal may be lost. Indeed, if we give a
realistic interpretation to the general knowledge available to the parties
(see the end of §26), they are forced to reject the utilitarian principle.
These considerations have all the more force in view of the complexity
and vagueness of these calculations (if we can so describe them) as they
are bound to be made in practice.
Moreover, the initial agreement on the principle of equal liberty is
final. An individual recognizing religious and moral obligations regards
them as binding absolutely in the sense that he cannot qualify his fulfill-
ment of them for the sake of greater means for promoting his other
interests. Greater economic and social benefits are not a sufficient reason
for accepting less than an equal liberty. It seems possible to consent to an
unequal liberty only if there is a threat of coercion which it is unwise to
resist from the standpoint of liberty itself. For example, the situation may
be one in which a person’s religion or his moral view will be tolerated
provided that he does not protest, whereas claiming an equal liberty will
bring greater repression that cannot be effectively opposed. But from the
perspective of the original position there is no way of ascertaining the
relative strength of various doctrines and so these considerations do not
arise. The veil of ignorance leads to an agreement on the principle of
equal liberty; and the strength of religious and moral obligations as men
interpret them seems to require that the two principles be put in serial
order, at least when applied to freedom of conscience.
It may be said against the principle of equal liberty that religious sects,
say, cannot acknowledge any principle at all for limiting their claims on
one another. The duty to religious and divine law being absolute, no
understanding among persons of different faiths is permissible from a
religious point of view. Certainly men have often acted as if they held this
doctrine. It is unnecessary, however, to argue against it. It suffices that if
any principle can be agreed to, it must be that of equal liberty. A person
may indeed think that others ought to recognize the same beliefs and first
principles that he does, and that by not doing so they are grievously in
error and miss the way to their salvation. But an understanding of reli-
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gious obligation and of philosophical and moral first principles shows
that we cannot expect others to acquiesce in an inferior liberty. Much less
can we ask them to recognize us as the proper interpreter of their relig-
ious duties or moral obligations.
We should now observe that these reasons for the first principle receive
further support once the parties’ concern for the next generation is taken
into account. Since they have a desire to obtain similar liberties for their
descendants, and these liberties are also secured by the principle of equal
liberty, there is no conflict of interests between generations. Moreover,
the next generation could object to the choice of this principle only if the
prospects offered by some other conception, say that of utility or perfec-
tion, were so attractive that the persons in the original position must not
have properly considered their descendants when they rejected it. We can
express this by noting that were a father, for example, to assert that he
would accept the principle of equal liberty, a son could not object that
were he (the father) to do so he would be neglecting his (the son’s)
interests. The advantages of the other principles are not this great and
appear in fact uncertain and conjectural. The father could reply that when
the choice of principles affects the liberty of others, the decision must, if
possible, seem reasonable and responsible to them once they come of age.
Those who care for others must choose for them in the light of what they
will want whatever else they want once they reach maturity. Therefore
following the account of primary goods, the parties presume that their
descendants will want their liberty protected.
At this point we touch upon the principle of paternalism that is to
guide decisions taken on behalf of others (§39). We must choose for
others as we have reason to believe they would choose for themselves if
they were at the age of reason and deciding rationally. Trustees, guardi-
ans, and benefactors are to act in this way, but since they usually know the
situation and interests of their wards and beneficiaries, they can often
make accurate estimates as to what is or will be wanted. The persons in
the original position, however, are prevented from knowing any more
about their descendants than they do about themselves, and so in this case
too they must rely upon the theory of primary goods. Thus the father can
say that he would be irresponsible if he were not to guarantee the rights of
his descendants by adopting the principle of equal liberty. From the
perspective of the original position, he must assume that this is what they
will come to recognize as for their good.
I have tried to show, by taking liberty of conscience as an example,
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how justice as fairness provides strong arguments for equal liberty. The
same kind of reasoning applies, I believe, in other cases, though it is not
always so convincing. I do not deny, however, that persuasive arguments
for liberty are forthcoming on other views. As understood by Mill, the
principle of utility often supports freedom. Mill defines the concept of
value by reference to the interests of man as a progressive being. By
this idea he means the interests men would have and the activities they
would rather pursue under conditions encouraging freedom of choice. He
adopts, in effect, a choice criterion of value: one activity is better than
another if it is preferred by those who are capable of both and who have
experienced each of them under circumstances of liberty.
7
Using this principle Mill adduces essentially three grounds for free
institutions. For one thing, they are required to develop men’s capacities
and powers, to arouse strong and vigorous natures. Unless their abilities
are intensely cultivated and their natures enlivened, men will not be able
to engage in and to experience the valuable activities of which they are
capable. Secondly, the institutions of liberty and the opportunity for expe-
rience which they allow are necessary, at least to some degree, if men’s
preferences among different activities are to be rational and informed.
Human beings have no other way of knowing what things they can do and
which of them are most rewarding. Thus if the pursuit of value, estimated
in terms of the progressive interests of mankind, is to be rational, that is,
guided by a knowledge of human capacities and well-formed preferences,
certain freedoms are indispensable. Otherwise society’s attempt to follow
the principle of utility proceeds blindly. The suppression of liberty is
always likely to be irrational. Even if the general capacities of mankind
were known (as they are not), each person has still to find himself, and for
this freedom is a prerequisite. Finally, Mill believes that human beings
prefer to live under institutions of liberty. Historical experience shows
that men desire to be free whenever they have not resigned themselves to
apathy and despair; whereas those who are free never want to abdicate
their liberty. Although men may complain of the burdens of freedom and
culture, they have an overriding desire to determine how they shall live
and to settle their own affairs. Thus by Mill’s choice criterion, free insti-
7. Mill’s definition of utility as grounded on the permanent interests of man as a progressive being
is in