The basic liberties: An essay on analytical specification
| Published date | 01 July 2023 |
| DOI | http://doi.org/10.1177/14748851211041702 |
| Author | Stephen K McLeod,Attila Tanyi |
| Date | 01 July 2023 |
| Subject Matter | Articles |
Article EJPT
The basic liberties:
An essay on analytical
specification
Stephen K McLeod
Department of Philosophy, University of Liverpool, UK
Attila Tanyi
Department of Philosophy, UiT: The Arctic University of
Norway, Norway
Abstract
We characterize, more precisely than before, what Rawls calls the ‘analytical’ method of
drawing up a list of basic liberties. This method employs one or more general con-
ditions that, under any just social order whatever, putative entitlements must meet for
them to be among the basic liberties encompassed, within some just social order, by
Rawls’s first principle of justice (i.e. the liberty principle). We argue that the general
conditions that feature in Rawls’s own account of the analytical method, which employ
the notion of necessity, are too stringent. They ultimately fail to deliver as basic certain
particular liberties that should be encompassed within any fully adequate scheme of
liberties. To address this under-generation problem, we provide an amended general
condition. This replaces Rawls’s necessity condition with a probabilistic condition and it
appeals to the standard liberal prohibition on arbitrary coercion by the state. We
defend our new approach both as apt to feature in applications of the analytical
method and as adequately grounded in justice as fairness as Rawls articulates the
theory’s fundamental ideas.
Keywords
Basic liberties, basic rights, economic liberties, freedom of expression, freedom of
speech, moral powers, political legitimacy, political satire, Rawls
Corresponding author:
Attila Tanyi,Department of Philosophy, University of Tromsø: The Arctic University of Norway,9037 Tromsø,
Norway.
Email: attila.tanyi@uit.no
European Journal of Political Theory
!The Author(s) 2021
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DOI: 10.1177/14748851211041702
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2023, Vol. 22(3) 465–486
Introduction
While it is widely held that some liberties are more important than others, there
has been considerable controversy about which liberties count as basic and which
do not. Some theorists have held that such moral rights as the right to engage in
sit-ins and mass picketing during strikes, or to participate in other forms of direct
action, do not count as, and can take priority over, freedoms that liberals tend to
regard as basic (Gourevitch, 2018; Raekstad and Rossi, 2021). The question has
also arisen as to whether a right to an element of workplace democracy, or eco-
nomic democracy, is basic by liberal lights (Clark and Gintis, 1978; Gourevitch,
2014; McLeod, 2018; O’Neill, 2008). Moreover, there is a prominent and ongoing
controversy about whether certain laissez-faire economic freedoms qualify, as
Tomasi (2012a, 2012b) argues, as basic liberties.
1
Such controversies have important consequences for political philosophy and its
applications. Like Arnold (2018) and Brennan (2020), we are concerned with the
underlying question, about which there is also controversy, of how to draw the
distinction (that Flanigan, 2018 considers unfounded) between basic and non-basic
liberties. That is: how are liberals and their critics to decide as to which liberties
are, according to liberalism, the most important or basic? Focusing on Rawls’s
account of the basic liberties will enable us to recognize and address some intri-
cacies that arise when attempting to answer this question.
There is also a wider context. Rawls’s version of high liberalism can be seen as
driving a wedge between classical liberalism and left liberalism via its favoured list
of basic liberties. As Brennan (2020: 493) explains, Rawls’s list excludes both
economic liberties that classical liberalism includes, and social liberties that left
liberalism includes. This shows that deciding what makes its way onto the list of
basic liberties is not merely an exercise in ‘list-drawing’. It is really a debate about
the fate of liberalism and particularly about which version of liberalism, if any, it is
fitting to accept. Our contribution in this article can thus be seen as an intervention
in this debate, albeit, as we explain below, in a way more fundamental than merely
arguing that one liberty or another makes it onto the list.
Rawls (2005 [1993]: 290) writes that there are two phases involved in providing a
defensible specification of the basic liberties. The first involves specifying a list of
basic liberties under general headings. The second involves further specification of
this list by determining the significance of different particular liberties that come
under the same general heading and adjudicating over conflicts between them. For
example, after Nickel (1994: 780), while in the first phase freedom of movement is
recognized as a basic liberty, in the second phase it is recognized that certain
particular liberties of movement (e.g. going on holiday) are much less important
than others (e.g. attending a political rally).
Further, Rawls (2001: 44, citing 1971: 61, cf. 2005 [1993]: 450) remarks that ‘the
basic liberties are specified by a list’. Rawls (2001: 45, cf. 2005 [1993]: 292–293)
distinguishes between ‘historical’ and ‘analytical’ ways of drawing up a list.
Proceeding historically, ‘we survey various democratic regimes and assemble a
466 European Journal of Political Theory 22(3)
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