The words ‘liberty’ and ‘equality’ got popular in the French Revolution of 1789. Since then the collective usage of these words has slowly spread to other parts of the world and today they also find mention in the constitution of many countries including India. As far as dictionary meaning of these words is concerned, liberty is defined as the state of being free within society from oppressive restrictions on one’s behaviour and equality is described as the state of being equal, especially in status, rights, and opportunities. Whereas liberty is concerned more with the idea of freedom, equality is tilted more towards the idea of non-discrimination. The former is a negative right and the latter a positive one implying an obligation on the State to proactively bridge inequality especially in the economic sphere. Though constitution of most countries are geared towards ensuring both liberty and equality yet there is some degree of difference in which they prioritise one over the other depending on the peculiar socio-political circumstances.
Jurisprudential understanding of Liberty & Equality
The dichotomy between Liberty and Equality has prevailed since long and there always has been this dilemma over the extent and scope of their incorporation as rights of individuals. Today there prevails a broader consensus internationally about the value of both liberty and equality as inviolable human rights and this is evident in the provisions of UN Charter, UDHR and many other international conventions asking states to effectively secure these rights to their citizens. Though liberty and equality are not new concepts, they came to be scrutinised in a much nuanced manner by European scholars, philosophers, and jurists after the Renascence and since then with the colonisation, their thoughts gradually got promoted to the rest of the world affecting the legal discussions and systems therein over a period of time. Today there are various schools of thoughts in Jurisprudence with each having its own set of scholars propounding their views on aspects of justice and law and many of them do not fail to discuss the concept of liberty and equality in their scholarly writings.
During the European Renascence, liberty was widely understood to mean freedom from state oppression and interference into societal affairs beyond a certain limit. John Stuart Mill was one of the first European scholars who talked about liberty of individuals from oppressive and unjustified actions of not only state but also of society given that at times society can be equally oppressive as a state. Social oppression of an individual can manifest itself in various forms including regressive customs and its inherently majoritarian character that that does not tolerate freedom of minorities and other groups. However, Mills idea of liberty is not universal as he excludes certain entities like backward states, barbarians, immature and young ones from its ambit. Secondly, Mill being an unequivocal utilitarian does not propose individual liberty as an end in itself but considered its worth only as a means for the greater end which is continued progress of mankind.
Immanuel Kant was another European philosopher who comprehensively talked about the concept of liberty and freedom. He talked about freedom by contrasting autonomy with heteronomy. By autonomy, he meant acting according to a law that one gives to himself/herself and by heteronomy, he meant acting for the sake of an outcome. As opposed to utilitarians and consequentialists Kant was a deontologist and values liberty for the sake of liberty itself or as an end in itself and not for any other purpose or consequence. He argues that human beings should be treated as an end in themselves and not as a means for achieving some other goal. In his words- “Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.”
Isaiah Berlin in his ‘Essays on liberty’ also talked about liberty and freedom in much detail by offering a nuanced critique of other scholars who agreed that liberty should not be unlimited in order to make a place for other rights such as equality. He said that though most of the philosophers agree that there should be a certain minimum extent of liberty guaranteed to everyone and this certain minimum should be beyond interference from the state, but there is no clear cut understanding as to what should constitute this certain minimum. He also said that there is no universal understanding of freedom and liberty as its conceptions differ greatly according to the social and economic conditions of people and therefore one should not aim to offer a uniform and rigid definition of such concepts.
Whereas all scholars mentioned above primarily focused on the aspects of liberty, John Rawls belongs to those line of scholars who drew a remarkable connection between equality and liberty using his theory of Justice. His focus was to formulate the principles of a just society. He was of the view that in order to achieve a justice-oriented society, one should first create just institutions as it is these institutions which greatly affects the life chances of an individual. Rawls is considered to be a liberal egalitarian because of his act of accommodating equality within the fold of liberty. Amongst his two major principles of justice in an ideal situation, the first one is about liberty which provides that everyone is entitled to the most extensive system of liberty which is compatible with similar liberty of others. And according to his lexical order, the first principle of liberty always takes precedence over the second principle which addresses socio-economic inequalities. His idea of liberty primarily focuses on political liberty, liberty of conscience and liberty to hold personal property.
Though Rawls appear to be advocating the equal distribution of wealth in his second principle of justice but quite unlike Marxists as he did not negate unequal distribution of socio-economic benefits provided it is advantageous to everyone and it is attached to offices open to all. In his words- All social values-liberty and opportunity, income and wealth, and the social bases of self-respect-are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone’s advantage. The function of the second principle is basically to ensure equality of opportunity in the system of the most extensive form of liberty. For the non-ideal situation, Rawls is ready for less than maximum liberty if it strengthens the overall system of liberty and he is also fine with less than equality if people with less than equal liberty accept such arrangement. To illustrate this he gives the example of a war-time situation referring to which he argues that captives should not be killed if they agree to be the slaves of the victor.
Critique of Rawlsian concept of Justice, Liberty & Equality
Rawls believed that the primary focus of justice should be the basic structures of a society. By basic structure, he meant the major institutions of society such as social, political and economic structures. He argued that these institutions play a huge rule role in the distribution of benefits and burdens resulting from social cooperation which in turn affects the life chances of an individual and therefore in order to secure justice, principles governing these institutions must be just. The problem, however, is that people’s life chances are affected not only by these public institutions. People face a plethora of obstruction in their private and domestic lives as well. For example- domestic violence can have great phycological ramifications on a victim’s life. Indian constitution attempts to envisage a fair political system where all individuals are to be treated equally by the State but this in and of itself does not solve the greatly unjust and discriminatory caste-based social system of India regarding which Dr. Ambedkar said that there is no guarantee that this political liberty and equality will necessarily translate into social liberty and equality in the caste-ridden society of India which is greatly unequal and unjust in its outlook and vision. Rawls conception of justice suffers from a similar defect when it focuses only on public institutions and assumes that just public institutions will translate into substantive Justice in all spheres of life.
To formulate the principles of justice Rawls envisages a hypothetical original situation in which everyone is under the veil of ignorance ie nobody knows his social, economic and political status in the society and there is also ignorance about one’s strengths, intellectual capacity and fortune in the distribution of natural assets and abilities. Here Rawls has been accused of abstraction as he formulates the principle of justice in a situation far away from reality. Either he believes that it is impossible to create principles of justice in the real world or he presumes that abstraction is necessary for its formulation. Post-modernists have criticised Rawls for his double standard and accuse him of taking conflicting standpoints & selectively choosing things to justify his theory and then assuming that without an agreed starting place, one cannot reach a theory of justice which is agreeable to everyone.
In the original position, people (as conceptualised by Rawls) formulate two major principles, the first being of liberty under which everyone is equally entitled to the most extensive form of liberty but which comparable to similar liberty of others and the second being the difference principle which does not negate unequal distribution of socioeconomic advantages provided it benefits everyone and it is attached to offices open to all without discrimination on any morally arbitrary criteria like sex, gender, race, etc. As per Rawls, the first principle takes primacy over the second principle which means that Rawls prioritise liberty over equality.
In the part of the theory dealing with non-ideal situations, Rawls even favours curtailment of liberty provided it strengthens the overall system of liberty but the scope & extent of curtailment remains a grey area and so is the criteria of measuring whether the overall system of liberty has been strengthened or not by such curtailment. Therefore commensurability appears to be a major drawback. In the non-ideal situation, he readily compromises on the second principle as well and even agrees to less than equal liberty if people with less than equal liberty agrees to such an arrangement. The example of a war which he gives to justify his assertion seems problematic on many grounds. Rather than stressing on a humane treatise on war as is evident in the Vienna & other international conventions prohibiting certain techniques and weapons in wars, Rawls in a way justifies turning war hostages and captives into slaves if those captives chose the option of slavery over death.
His equality principle has no independent existence as it is geared towards ensuring equality of opportunity which in turn is geared towards the first principle of liberty. Secondly, his difference principle does not guarantee substantive equality but it only makes all people better off.
Many western scholars especially libertarians do not put much effort into harmonising liberty and equality as they clearly favour the former over the latter in their conceptions of Justice. Another set of scholars like Bentham and JS Mill who subscribed to Utilitarian philosophy were more concerned about the well-being and permanent progress of the mankind as the end-goal for which they regarded liberty & equality to be having only an instrumental value and nothing more than that. Immanuel Kant- a deontologist did not buy the utilitarian argument and insisted that Human beings should be treated as an end in themselves and not as a means for an end whatever it may be. And for that he did accord some intrinsic values to these rights. John Rawls who subscribed to liberal egalitarianism impliedly favoured liberty over equality by placing different values on both in his theory of justice. It is said that western scholars’ preference for liberty over equality is shaped by their historical and cultural experiences which align them more towards liberty. But in countries of the Global South (especially in India) equality has been of a greater concern because of the problematic and arbitrary segregation of people on the lines of castes and bloodlines for a long time which perpetuated millennials of hierarchy, subjugation, and exploitation amongst them on these lines. The social order of Global North did not suffer such horrendous, static and perpetual inequality as inter-mobility amongst different classes was possible there. They primarily experienced restraint of liberty only hence their intellectual thrust has been more on achieving liberty, unlike India where more focus is supposed to be paid on egalitarian values during policy formulations for achieving social-justice even if it undermines liberty as is evident in many social welfare legislations. However, in this post-modern world, both equality and liberty are equally desirable for securing social-justice and therefore rather than compromising on one for the sake of the other both should be balanced out, harmonised and justified according to peculiar facts and circumstances taking into account the public reason grounded in welfare, justice and well-being of all. As far as the constitutive elements of Justice and its extent and scope is concerned, I cannot sum it better than in few verses of the Holy Quran which provides-
O ye who believe! Stand out firmly for justice, as witnesses to the Almighty, even as against yourselves, or your parents, or your kin, and whether it be against rich or poor: for He can best protect both. Follow not the lusts of your hearts, lest ye swerve, and if ye distort justice or decline to do justice, verily He is well-acquainted with all that ye do.Al-Quran 4:135
O ye who believe! stand out firmly for the Almighty, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next to piety: and fear him; For He is well-acquainted with all that ye do.Al-Quran 5:8
They are fond of listening to falsehood, of devouring anything forbidden. If they do come to thee, either judge between them, or decline to interfere. If you decline, they cannot hurt thee in the least. If you judge, judge in equity between them. For He loves those who judge in equity.Al-Quran 5:42
And these plainly written few verses of wisdom on justice certainly appear more forceful, resplendent and magnificent to me than the combined strength of thousands of legal jargons written in a book of modern jurisprudence running into thousands of pages.
- ICCPR (ohchr.org)
- George H. Smith and David Gordon, John Stuart Mill’s On Liberty (libertarianism.org)
- Michael J Sandel, Justice: What’s the right thing to do?
- Mari J. Matsuda, A Feminist Critique of Rawls’ Theory of Justice, New Mexico Law Review
- Isaiah Berlin, Two Concepts of Liberty
- BR Ambedkar (The Scroll)
- Stephen’s Critique of Mill’s Idea of Liberty, OLL
- Holy Quran (Yusuf Ali Translation)