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Freedom of speech is a basic right in virtually all liberal constitutions and an ‘institutional condition’ for a polity to qualify as democratic (PL 309).1 It is likewise entrenched in international charters such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.2 In the works of Kant and Rawls, we find an acute sensibility for the pre-eminent importance of freedom of speech, indeed both authors can be placed among its great philosophical champions. Both are aware that claims to free speech draw on a variety of normative sources, and that they can serve individual as well as political goals. For both authors, free speech is a characteristic and necessary liberal as well as democratic institution, but their conceptions differ markedly when applied to non-liberal and non-democratic societies.
This basic difference between Kant and Rawls comes to the fore in Rawls’s treatment of non-liberal, hierarchical societies. The difference is that freedom of speech, for Kant, is a universal claim that can serve as a test of legitimacy (Rechtmäßigkeit) of all legal orders, while for Rawls, some legal orders are owed full recognition even if they do not in principle guarantee freedom of speech. I want to discuss this difference in four steps. In the first two steps, I sketch some main features of free personal and political speech in Kant (section 2) and Rawls (section 3). I argue that a much-overlooked shift in Rawls’s development ties his account of free speech to issues concerning justice. In the next step, I discuss Rawls’s perspective on some non-democratic regimes in his Law of Peoples, regimes that he understands as well-ordered but which do not guarantee freedom of speech. I criticize Rawls’s account from Kant’s perspective (section 4). In a fourth step, I introduce a ‘module’ from Kant’s pre-republican thought into Rawls’s conception, aiming to secure a core area of justice-related speech, and respond to some initial objections (section 5). In contrast to earlier critiques of Rawls, which lambasted his lack of concern for freedom of speech in non-Western societies as insufficiently liberal, my remarks are offered in a constructive spirit. I suggest that under Kant’s premises for autocratic legitimacy, an important...