Should Civil Liberties Have Strict Priority?

RYAN PEVNICK
LAW AND PHILOSOPHY (2015). ADVANCED ONLINE PUBLICATION. DOI 10.1007/s10982-015-9233-1

Abstract: Many political controversies involve conflicts between civil liberties and other important social goals (such as equality of opportunity and non-discrimination). The orthodox view in liberal political theory is that civil liberties must be given strict priority over competing social goals because of (1) the importance of the interests advanced by such liberties and/or (2) their role in upholding the status of citizens. This paper criticizes both lines of argument. Interest-based arguments fail because we are sometimes willing to sacrifice the very fundamental interests of some citizens in order to advance large collections of lower priority interests. This shows that civil liberties cannot have strict priority over other social goals just because of the importance of the interests that they protect. Meanwhile, because considerations of status are often at stake on both sides of conflicts between important civil liberties and other social goals, their importance cannot provide reason to give strict priority to such liberties. These arguments cast doubt on the view that civil liberties ought to have strict priority over other social goals.