These are classic, oft-quoted nuggets, but the purpose of this blog is, after all, to keep a record of those bits I have loved to read and write.
Lloyd L. Weinreb, The Complete Idea of Justice, 51 U. Chi. L. Rev. 752, 789-94 (1984).
VII. LIBERTY AND EQUALITY
If we confine our attention to that portion of our lives within the ambit of positive law, in which entitlements displace natural occurrences, the conclusions of the previous section can be taken a step further. The ideas of liberty and equality are prominent as organizing principles in contemporary political philosophy. In John Rawls’s influential work, for example, the two basic principles of justice, which determine “the basic structure of society,”’ are specific principles of liberty and equality. [FN49] Other writers as well, implicitly or explicitly, have suggested that a description of the content*790 of liberty or equality, or both, provides the grounding for a just social order. [FN50] To a large extent, current work in political philosophy has consisted of an effort to elaborate that content specifically and concretely.
Every exercise of liberty potentially interferes with the liberty of someone else, however, and, unless one relies on conventional understandings, there is nothing in the nature of liberty itself that tells us which to choose. It may seem obvious-but why is it?-that my liberty to put my fist in another person’s face is subordinate to his liberty not to be punched. The choice and the basis for making a choice is far less clear if, for example, we have to decide whether the liberty to smoke on an airplane outweighs the restraint on the liberty of someone who wants to fly without being surrounded by the fumes. If all have liberty to smoke, none has liberty to fly without breathing smoke-filled air; if all have liberty to fly in clean air, none has liberty to smoke. Which liberty should prevail? The most likely test in a democratic society is actual preferences: Which of the opposed liberties would most people, after careful reflection, prefer? On that basis, the principle of liberty is only a principle of majority rule. That may often be the correct result, but considerations of liberty do not establish it. Some of the particular liberties especially valued in the United States are expressly protected against the will of the majority. In the same way, every other ground for choosing one liberty over another depends on assumptions not provided by the idea of liberty itself. [FN51]
*791 The best-known formulation of a general principle of liberty, John Stuart Mill’s assertion that one ought to be at liberty to engage in self-regarding conduct, [FN52] is notoriously unsatisfactory. Not only is it unclear what conduct-if indeed any-it plainly covers but it is doubtful on its own terms. [FN53] A more limited version of the same principle, that the enforcement of morality as such is a violation*792 of liberty, may look unassailable only because it has no concrete applications and, in any event, is far too limited to provide a significant content for liberty in the modern world; it also depends on conventional understandings of what counts as an injury. [FN54] We are adrift in a sea of so-called “negative”’ and “positive”’ liberties, but which are negative and which positive depends on where one starts; that characterization is either indefinite or inconclusive. [FN55] For all their protests to the contrary, the libertarian’s assured definition of liberty assumes a knowledge of human nature and a natural order as certain and metaphysical as anything in Greek tragedy. [FN56] The rest of us struggle uncomfortably with our preferences and the opposed preferences of others.
*793 Likewise, every human characteristic and aspect of the human condition is abstractly a candidate for some sort of equality, and every equality heightens the significance of differential characteristics that remain. Equality of opportunity, the most generally approved principle of equality, does not lead to equality among individual persons at all; on the contrary, it suppresses some differential characteristics and heightens the differential impact of others. [FN57] So we are pressed toward the idea of identity, which eliminates altogether the differential characteristics that distinguish us as individuals. [FN58]
Not only are abstract liberty and abstract equality by themselves in internal conflict. They are in conflict with one another. Significant liberty allows a person to distinguish himself and become different, for better or worse, from other persons who use their liberty differently. Equality in some respect eliminates difference and, with it, the liberty to become different in that respect. Thus, every liberty not only potentially restricts another liberty, but, from another perspective, denies equality. Everty equality not only heightens the impact of another inequality, but also denies some possibility of liberty.
Liberty and equality are not meaningless ideas nor do they lack significant, reasonably determinate content in our political and social life. On the contrary, there are many areas of life in which they have specific content that is largely uncontroversial and other areas in which their content is openly contested and which provide testing grounds for their meaning in the future. It would be bizarre for someone to protest that basing admission to college on academic potential is a denial of equality because it favors persons with greater academic aptitude, or that giving every person one and only one vote is a denial of liberty because persons have no opportunity to increase their political power by voting early and often. In this country at this time, the frontiers of liberty and equality are elsewhere. From a broader perspective, however, it is evident that the frontiers are as much determined by our legal and *794 other conventions as they are determinative of them. If our expectations are undermined by a shift in public policy, like the introduction of affirmative action into competitions previously based on more or less understood conceptions of differential merit, the meanings of liberty and equality become open and unsettled and by themselves furnish no resolution of the contesting interests.
I love how this is put. I’m reading a lot of natural law for the paper that has subsumed my consciousness. It’s fascinating to look for the spots where economics diverges from moral law. Even more fascinating that it seems to be in the concept of justice as desert where the two come back together. People are neither moral nor ambitious in a vacuum. Perhaps we are “basically good” (is it just me who always thinks of Ann Frank when I hear that phrase?), but without coming back to the basics — virtue is rewarded — economists and moralists alike would basically weep.