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Introduction: Political liberalism as a framework of justification

1More than twenty years after its first publication, Rawls’s Political Liberalism continues to puzzle expositors of liberal doctrine. [1] Political liberalism, as Rawls has formulated it, stipulates that conceptions of justice must be acceptable to every member of a democratic society who is reasonable, that is, whose comprehensive views of the good allow him to respect the equal standing of others qua fellow citizens. So understood, political liberalism offers a framework of justification which grounds the allegiance of reasonable citizens to the state and, by implication, warrants governmental action to secure and promote the requirements of justice. The stakes of Rawls’s project can hardly be underestimated, as they bring two fundamental problems of modern politics into sharp relief. First is our understanding of the role that disagreement and controversy play in political life. Political liberals typically hold that even if disagreement (both reasonable and unreasonable manifestations of it) is ineradicable in most spheres of social life, the perspective of consensus on specifically political questions of justice is not unrealistic. Principled, reasoned agreement on justice is important to political liberals because they believe it engenders stability in a democratic society’s institutions, notably the state and its government. In this regard Rawls’s formulation of political liberalism has also been a cornerstone of consensus-oriented deliberative understandings of democracy. [2]

2But the focus on reasoned agreement and consensus has, in turn, invited radical critiques that stress the cardinal importance of open-ended, passionate disruption to politics. These critics celebrate ‘agonistic’ contestation and controversy within but especially beyond the institutional sites of state and government. The possibility of agreement, such as the political liberal search for an ‘overlapping consensus’ on justice, is seen by agonists as a denial rather than consummation of politics, which risks to close off democratic venues for dissenting voices. [3] Even if one does not share the agonistic esteem for conflict in political life per se, the question presents itself if, as a framework of justification, the ambition of political liberalism to achieve consensus is both feasible and desirable. In this regard, many ‘realist’ critics worry that, in Glen Newey’s phrase, Rawls and his likes ‘use ethics to contain the political’ and consequently fail to heed the specific dynamics of power and conflict which infuse political life. [4]

3A second crucial stake that is raised by political liberalism concerns the ‘neutral’ or at least sufficiently uncontroversial character that the state must assume to command the allegiance of all its reasonable citizens—irrespective of their adherence religious, atheist or agnostic comprehensive views of the good life which do not deny the equal rights of others. Political liberals typically judge that the controversial metaphysical, moral or epistemological commitments (to, say, individual autonomy, value pluralism, etc.) found in many classic statements of liberal doctrine obstruct such an inclusive allegiance to the state. They argue that liberals with ‘perfectionist’ commitments reproduce rather than overcome the state’s sectarian character. The difficult challenge, as Nussbaum sees it, is to avoid the impression that liberalism and its understanding of the state amounts to ‘a form of religion in its own right.’ [5] From the perfectionist perspective, however, any liberalism worthy of its name must as a matter of justice require of the state and its government to promote the autonomy and flourishing of all the individuals who fall under its authority. And this task indeed necessitates the state to take controversial stances vis-à-vis comprehensive conceptions of the good. According to perfectionist liberals, then, it is not merely unavoidable but desirable that government fulfills evaluative tasks in which valuable courses are ranked and an adequate range of options is assured by which individuals are enabled to live an autonomous life and the demands of justice are upheld. [6] Even if one is not convinced of liberalism’s unavoidable perfectionism, the question still arises if political liberalism is truly successful to offer an uncontroversial, non-perfectionist or perhaps even a fully ‘neutral’ account of the state and its government.

4Among the many interventions that have been made in these wider debates, Nussbaum’s contribution to political liberalism is, I think, particularly revealing of how these two stakes play out. Her reformulation of political liberalism’s initial articulation by Rawls and Larmore, which strips the key notion of reasonableness from its theoretical and epistemic dimensions, seems more inclusive with regard to the scope of citizens joining the overlapping consensus on liberal conceptions of justice. [7] However, as the first part of this article seeks to make clear, Nussbaum’s inclusive scope of citizens is inversely related to the range of issues that the subject-matter of conceptions of justice can cover. To support this contention Nussbaum’s capabilities list, which incorporates several controversial issues, serves as a pertinent example. In comparison to Nussbaum’s use of political liberalism as a framework of justification, Rawls’s own account turns out to be more inclusive in spite of the exclusionary potential of the theoretical and epistemic dimensions of its notion of reasonableness. This is mainly due to Rawls’s narrower circumscription of the subject-matter of political justice and his abstinence from pursuing a world-wide, cross-cultural overlap. Our initial focus on a comparative reading of Nussbaum and Rawls is especially instructive since they are exceptional in not only proposing fully specified liberal conceptions of justice (the capabilities list and justice as fairness, respectively) but also in constructing and using political liberalism as a framework of justification for these conceptions.

5But if the first part of this article credits Rawls with a comparatively more inclusive account of political liberalism, the second part argues that his project is ultimately founders in its justificatory ambitions. The argument advanced here is that if political liberalism remains committed to its self-imposed criterion of acceptability of the conception of justice to all who are reasonable, the depth of its overlapping consensus is ultimately limited to the abstract assertion that all persons are free and equal. Following its own terms of justification, the stable overlap of political liberalism cannot but refrain from specifying a conception of the person to substantiate this assertion. More importantly, it must also abandon Rawls’s conception of society in order to avoid the charge of controversy by, and thus the exclusion of, otherwise reasonable citizens. To warrant this claim, the article addresses Rawls’s ambiguous, but rather neglected, comparison of his conception of society to Oakeshott’s ideal character of a practical (civil) association as distinguished from a purposive (enterprise) association. The comparison calls for a fundamental critique of political liberalism, in which the philosophically contentious character of Rawls’s consensualism, directed towards a Hegelian rational reconciliation with society, is brought to light. In other words, if the search for an overlapping consensus is itself philosophically controversial, then political liberalism defeats itself on its own terms.

6The article is structured as follows. It starts with an introductory exposition of political liberalism as a framework of justification, paying special attention to Nussbaum’s account. Equipped with this exposition, the first part of the article exhibits how controversy arises within the search for an overlapping consensus on liberal conceptions of justice. For this purpose, it starts with a critical account of Nussbaum’s amendment of political liberalism’s original exposition by Rawls and Larmore, which seeks to be more inclusive towards reasonable citizens. Subsequently, Nussbaum’s alternative inclusive strategy is exposed to backfire and, compared with Rawls’s account, be more exclusionary since she does not duly restrict the subject-matter of political justice and pursues a worldwide overlap. In the second part, the controversial character of political liberalism’s consensualism as such is revealed. The argument starts by showing why a merely ‘deep’ overlapping consensus on Rawls’s conceptions of the person and of society is subject to the charge of controversy and ultimately concludes that on account of its contentious Hegelian inspiration, the pursuit of an overlapping consensus undermines its own core criterion to be acceptable to all who are reasonable.

7Political liberalism, like its perfectionist competitor, often articulates the terms and presuppositions of liberal doctrine itself. These articulations are important in their own right, but it is equally vital to recall what purposes they are expected to serve. For Nussbaum, as for Rawls, the answer seems clear: political liberalism has, first and foremost, a crucial part to play in the justification of liberal conceptions of justice. It has been noted that for the justification of Nussbaum’s own account of justice—the capabilities list—political liberalism has come to play an increasingly more prominent, if not dominant, role. [8] Why, exactly, does she maintain that her list qualifies as a type of political liberalism? In familiar Rawlsian terminology, Nussbaum holds that her list ‘is not a comprehensive doctrine of any sort.’ Instead, it only serves the political purpose of concurring on a liberal conception of justice that could find support in an overlapping consensus. Since it only reflects a ‘partial’ theory of the good, people can attach her list as an additional ‘module’ to their diverse and often conflicting comprehensive views of the good life. Further, the affinity of the capabilities list with political liberalism also lies in its deontological commitments: it treats every person as an end in himself by securing a threshold level of each central capability. This commitment ensures that all have the opportunity to lead a worthy life. [9]

8Nussbaum’s turn to political liberalism for the justification of the capabilities list marks an important departure from her earlier writings. In the years before her elaboration of the capabilities approach, she was concerned to offer a ‘thick vague theory of the good’. [10] This initial concern has, for some time now, receded into the background in order to stress the importance of articulating the moral values that underlie political justice in a ‘calculatedly thin way.’ [11] But the semantic shift from a ‘thick’ to a ‘thin’ utterance about the requirements for a flourishing and dignified human life does not seem problematic to Nussbaum, since she persistently claims to have refrained from theorizing and promoting a comprehensive, perfectionist liberal or otherwise, doctrine.

9Nussbaum, in effect, invites us to view her capabilities list as a delicate balance between a thick theory of the good that can resist moral relativism and a thin political program that is sufficiently uncontroversial in order to qualify as a type of political liberalism. [12] The selection of central capabilities is therefore presented as ‘evaluative and ethical from the start,’ but these are neither grounded in strong metaphysical or epistemological claims nor derived from ‘thicker ethical doctrines (such as Kantianism or Aristotelianism).’ [13] Avoidance of such foundational claims inspires her confidence that the capabilities list is a feasible candidate to become the object of an overlapping consensus. For this purpose, however, Nussbaum judges it necessary to amend the initial articulation of political liberalism by Rawls and Larmore.

10According to Nussbaum, Rawls and Larmore stress that any account of political liberalism must start from the observation that reasonable disagreement about comprehensive views of the good will naturally persist in a liberal society and hence give rise to reasonable pluralism. This, they believe, is not an obstacle to but a feature of a more inclusive agreement on political justice. [14] For a reasonable citizen may continue to think that only his account of the good life is true or correct and yet remain respectful to his fellow citizen, who he recognizes as his political equal (regardless of how false he views the latter’s comprehensive beliefs). And so, we are advised to employ a ‘method of avoidance’ of clashes between overall accounts of the good, including such divisive issues as value monism or pluralism, and vest our hopes in ‘the centrality of the idea of respect’ to concur upon a liberal conception of justice. [15] It is crucial, then, that Rawls and Larmore invoke the idea of equal respect for persons as a strictly political value, as Nussbaum explains: ‘thus one might in principle accept it while continuing to believe that persons do not deserve equal respect in religious or metaphysical respects.’ [16] Through their endorsement of equal respect, reasonable citizens can agree upon liberal conceptions of justice. As these conceptions become the focus of an inclusive overlapping consensus, the practice of public reason (specifying the requirements of justice) is supported by this guiding framework of political liberalism and renders society stable ‘for the right reasons.’ [17]

From controversy within the search for an overlapping consensus…

11But the feasibility of an overlapping consensus depends, in part, on the definition the political liberal gives of the notion of reasonableness. It goes without saying that among reasonable citizens we do not expect to include, for instance, those adhering to a racist or sexist overall account of the good: he does not uphold the political value of equal respect (denying a fellow citizen from another race or sex his or her due respect qua citizen) which is necessary to endorse the liberal conception of justice. On what conditions, then, is a citizen to be counted as reasonable and may he be expected to participate in the overlapping consensus? It is at this point that Nussbaum reformulates political liberalism, because she thinks that Rawls’s and Larmore’s theoretical account of ‘reasonableness’ move them ‘uncomfortably close’ to a perfectionist liberal view which is unable to provide an inclusive overlapping consensus. [18] For this reason Nussbaum has set herself the task of defining the notion of reasonableness in purely ethical terms so as to facilitate a more inclusive scope of citizens to participate in the stable overlap. Let us examine this issue more closely.

Reasonableness and respect: Nussbaum’s reformulation of political liberalism

12Focusing on Rawls, Nussbaum points to an ambiguity in his distinction between reasonable and unreasonable persons with comprehensive views. This ambiguity lies in Rawls’s qualification of a reasonable doctrine in both an ethical and a theoretical sense. According to Nussbaum, the ethical sense in which we may call a person reasonable corresponds to his subscription to the political value of equal respect for persons. Here, reasonableness and respect coincide: on account of his endorsement of equal respect for persons as a political value, a reasonable citizen necessarily adheres to a reasonable comprehensive doctrine. However, Rawls also posits certain epistemic criteria and theoretical conditions which define whether or not a comprehensive doctrine itself, as distinguished from the person adhering to it, is to be counted as reasonable. These features include a doctrine’s theoretical coherence and consistency, its practical accommodation of conflicting values and its origins in an historical tradition of thought and belief. [19]

13Nussbaum rejects the theoretical and epistemic sense in which Rawls distinguishes reasonable from unreasonable doctrines and hence reasonable from unreasonable citizens:


‘The problem with Rawls’s formulation is that there would appear to be many doctrines affirmed by reasonable citizens (in the ethical sense, respectful of one another) that do not meet these rather exacting theoretical standards.’ [20]

15It is rather pointless, then, to insist on such features as the theoretical consistency of overall accounts of the good of the good in order to label them as ‘reasonable’ since, as Nussbaum aptly remarks, the point of many of these accounts is to ‘humble reason’ instead. Even more troublesome, according to Nussbaum, is Larmore’s account of reasonable disagreement in which religious faith is depicted as an insufficient explanation and, compared with sound rational arguments, perhaps even unsatisfactory ground for people’s allegiance to conflicting comprehensive views. [21]

16But not only would it be pointless, Nussbaum seems to suggest that it is simply unnecessary to evaluate the theoretical reasonableness of (the grounds of adherence to) overall accounts of the good. For the emergence of an overlapping consensus, what we should be concerned about is only a citizen’s reasonableness in the ethical sense. Hence, Nussbaum reformulates political liberalism with a singular emphasis on the political value of equal respect for persons—absolved from a theoretical evaluation of their comprehensive beliefs:


‘My solution to this problem is that we remember that respect in political liberalism is, first and foremost, respect for persons, not respect for the doctrines they hold, for the grounding of those doctrines, or for anything else about them. It is because we respect persons that we think that their comprehensive doctrines deserve space to unfold themselves, and deserve respectful, nonderogatory treatment from government (whatever treatment they receive from citizens in the ‘background culture’).’ [22]

18This passage may be read as Nussbaum’s open invitation to ethically reasonable citizens: whatever your comprehensive conception of the good may be, so long as it allows you to adhere to the idea of equal respect for persons I count you in as reasonable. Ethical reasonableness or mutual respect is Nussbaum’s single requirement for citizens to pursue their overall account of the good and, additionally, to participate in an overlapping consensus on her capabilities list. So understood, Nussbaum’s amendment of the notion of reasonableness in political liberalism aims to clear the way for the emergence of a stable overlap in which a more inclusive scope of citizens will be able to participate.

19Is this distinction between an ethically reasonable citizen and the comprehensive view he happens to hold helpful to support liberal conceptions of justice, like the capabilities list, with a more inclusive overlapping consensus? My contention is that if the political liberal’s purpose is to convince us of the feasibility of such a stable overlap as a ‘realistic utopia’, it is not helpful to distinguish between a citizen and his comprehensive view, or vice versa. We cannot forego an evaluation of that view inasmuch as it affects the subject-matter of liberal conceptions of justice. [23] This poses an inconvenient problem for the political liberal: the maximization of the scope of (ethically reasonable) citizens is bound to be frustrated precisely because these citizens may not be able to reconcile their comprehensive views with the range of issues that form the substantive content of a liberal conception of justice. Indeed, there is an inevitable trade-off in the inclusiveness of the scope of citizens participating in the stable overlap and the range of issues liberal conceptions of justice cover. Let us examine this problem more closely.

20So far we have seen how Nussbaum’s definition of political liberalism seeks to be more inclusive with regard to the scope of participants in an overlapping consensus through the coincidence of reasonableness and respect. But surely, if an ethically reasonable citizen is to join this consensus it is ultimately his comprehensive view (or elements thereof) which stands in need of reconciliation with the substantive moral content of a liberal conception of justice. [24] This is not without difficulty. If I find myself incapable of harmonizing the capability of emotions with my adherence to a peculiar comprehensive Stoicism, what do I make out of that? In similar vein, how can I join the overlap when my religious doctrine is opposed to the endowment of animals with legal entitlements? Or how do I proceed when my comprehensive commitment to systems ecology is opposed to the anthropocentrism underlying political (or any other form of) liberalism? Clearly, this jeopardizes the feasibility of a stable overlap on a liberal conception of justice and all the more so if it includes such a vast range of issues as Nussbaum’s capabilities list. Note that I am still a reasonable citizen in the ethical sense, regardless of my adherence to a comprehensive Stoic or religious or systems ecologist view: my stance on emotions or other species does not compromise my subscription to the political value of equal respect for persons qua fellow citizens. It is therefore of little help that I am politically speaking a respectful and reasonable person. That does not offer me any guidance whatsoever to conciliate the capabilities list with my comprehensive view and hence join the overlapping consensus.

21The political liberal might object here that the problem is put too rigidly. Indeed, as both Nussbaum and Rawls have claimed empirically, we need to take the pliability of overall accounts of the good into account, which eases its required reconciliation with the liberal conception of justice in question. [25] There is, however, an important difference between Rawls’s and Nussbaum’s empirical reliance on the limberness of our comprehensive doctrines. For Rawls’s project, this reliance is less demanding given his deliberate effort to keep the range of issues that justice as fairness covers much more restricted and abstinence to pursue an international, cross-cultural overlap. For these two reasons it may be expected that Rawls’s justice as fairness is a more feasible candidate than Nussbaum’s capabilities list to become the focus of an inclusive stable overlap—in spite of the exclusionary potential of the theoretical and epistemic dimensions of his notion of reasonableness. Let us look at the arguments both give us to estimate that reasonable citizens will be susceptible to the attachment of liberal conceptions of justice as a module to their comprehensive views of the good life.

Restricting the subject-matter of political justice and abstaining from cross-cultural justification: why justice as fairness remains more inclusive than the capabilities list

22It has been suggested that at first sight major overall accounts of the good may be at odds with a liberal conception of justice like Nussbaum’s capabilities list given the extensive range of issues it covers, as our Stoic and religious and systems ecologist examples suggest. But Nussbaum offers several reasons why we should remain confident about the feasibility of her list becoming the focus of a stable overlap. Apart from her invocation of Rawls’s empirical claim that citizens usually do not hold ‘fully’ comprehensive views but typically exhibit a certain laxity in these, Nussbaum reminds us that the pursuit of an overlapping consensus does not mean that anything transcending a mere (and purportedly already existing) constitutional consensus should exist at present. She only needs ‘to show that there is sufficient basis for it in the existing views of liberal democracies that it is reasonable to think that over time such [an overlapping] consensus may emerge.’ [26] Beyond that, Nussbaum enlists six arguments to support the feasibility of the capabilities list’s potential to become the focus of an overlapping consensus (and hence to convince the reader of the justificatory work carried out by political liberalism). [27] First, she repeats that it is only a ‘partial moral conception’ that stands free from controversial comprehensive views or divisive metaphysical and epistemological foundations. Second, given the ‘non-negotiable’ presence of major freedoms (of expression, association, etc.) on the list, it respects diversity and pluralism.

23Third, through its general formulation it leaves room for the specification of capabilities through the deliberation of citizens within a specific (culturally and historically sensitive) context. Fourth, and relatedly, the international, cross-cultural justification of the list has to be distinguished from its domestic implementation and is therefore neither a pretext to foreign intervention nor a license to prescribe and coercively impose foreign values. Fifth, since Nussbaum proposes capability and not functioning as the correct metric of justice, people can abstain from employing a capability whose actual use would be contradictory to their overall account of the good. Sixth, standing in tension to the second argument, the list in its present form is not more than a proposal for persuasion and remains negotiable and open to revision and modification.

24Now, if we take, for instance, Nussbaum’s inclusion of animals as entitled to a threshold level of capabilities into the range of issues covered by her list as a test case, do these arguments increase its acceptability for reasonable citizens intent upon joining an overlapping consensus? My judgment is that they fail to do so. From her sound plaint against contractarianism’s conflation of the distinct questions ‘by whom’ and ‘for whom’ political justice is agreed upon, [28] Nussbaum moves on to contend that the inclusion of animals as bearers of legal entitlements is warranted on the ground that ‘the capabilities of all sentient creatures count as ends in themselves, and all should attain capabilities above some specified threshold.’ [29]

25But there can hardly be doubt that the proposition that all sentient creatures have intrinsic worthiness plainly commits her to a controversial view about the moral and metaphysical status of animals—a non-freestanding claim, indeed, which strikes one as foreign to political liberalism as a means of justification. From the perspective of political liberalism, this controversy cannot be settled by setting disputes about the equal dignity across species aside as a ‘metaphysically divisive question’ only to postulate the alleged intrinsic worthiness of sentient creatures as unproblematic. Whence comes support for the claim that cross-species equality is and sentient creatures’ intrinsic worthiness is not ‘controversial’? Nussbaum, indeed, never argumentatively supports why her proposition on the intrinsic worthiness of sentient creatures is ‘metaphysically abstemious’. [30] She does assert it time and again but the reader, alas, looks around where the assertion is left hanging in the air.

26Only at one point, to my knowledge, are we informed that the political liberal ‘focus on the basic structure is part of the abstemiousness of the theory, which, in turn, is dictated by its respectfulness.’ [31] Rawls’s restriction of the site of regulation of political justice to the basic structure of society is said to distinguish it from the pervasive comprehensiveness of, say, various utilitarian doctrines. But obviously this advantage does not hold for the liberal conception of justice that Nussbaum proposes, since its site of regulation is expanded to comprise not only society’s basic structure and institutions but potentially the entire animal world. Instead of confining herself to what Larmore calls a ‘minimal morality,’ [32] Nussbaum advocates the ‘gradual supplanting of the natural by the just’ and makes, from within the framework of political liberalism, one controversial policy proposal after another (from a ban on recreational hunting to the wearing of fur to sport fishing to the declawing of cats). [33] Nor again, is the political liberal abstemiousness of Nussbaum’s capabilities list accounted for when, for instance, Thom Brooks claims that it is not ‘too thick’ (compared with the ‘sufficiently thin’ list of Rawlsian primary goods) because it is ‘not a fully comprehensive doctrine as even its leading critics accept.’ [34] This is hardly convincing, since to insist on the non-comprehensiveness of a liberal conception of justice is a guarantee neither of metaphysical abstemiousness nor of its freedom from ‘too thick’ and controversial commitments. Brooks and Nussbaum seem to suggest that settling the first is to have decided the others. [35] In default of criteria with which to credit it with a ‘calculatedly thin’ articulation, the capabilities list remains, at least in its present form, steeped in controversy. [36]

27But further, when Nussbaum suggests that ‘recent developments in animal law in Europe are particularly encouraging’ for the emergence of a stable overlap on a capabilities list that includes extensive animal entitlements, [37] this neither implies that these laws accord with the moral and metaphysical status Nussbaum ascribes to animals nor that this claim escapes telling counterfactuals. To illustrate, take the bill proposing a ban on ritual slaughter that was introduced in the Dutch Parliament in 2012 by the Partij voor de Dieren (Party for the Animals). The bill, in effect, prohibited the un-anesthetized slaughter of animals as prescribed by Jewish and Islamic dietary laws. Having passed the Tweede Kamer (House of Representatives), the Eerste Kamer (Senate) voted the bill in large majority down on account of its infringement of religious freedom and persistent scientific doubt about the claim that conventional killing is undeniably less harmful than duly performed ritual slaughter. [38] The polarized debate that followed the introduction of the bill clearly indicates how far a cry Nussbaum’s inclusion of animal entitlement into a liberal conception of justice must be from what Rawls conceived to be no more than a ‘guiding framework’ for the practice of public reason insofar as it deals with constitutional essentials and the most fundamental requirements of justice. [39] For although Nussbaum makes the disclaimer that ‘there will always be an ineliminable residue of tragedy in the relationships between humans and animals’, she is clearly not so troubled, in this instance, to let animal rights trump religious freedom given her explicit recommendation of painless killing. [40] This example is particularly telling, indeed, if we call to mind that Nussbaum’s turn to political liberalism seems especially motivated by her concern to include reasonable religious citizens in the stable overlap. [41]

28Moreover, this counterfactual illustrates the deceptiveness of the distinction between capability and (the freedom to refrain from) actual functioning in order to strengthen the feasibility of an overlapping consensus. It is one thing to expect from our peculiar though ethically reasonable Stoic to subscribe to a list that includes emotions. No doubt he will find some reassurance in the freedom to refrain from actualizing this capability, although the problem remains, of course, that he must contribute financially (via taxes) to the provision of a threshold level of this capability. [42] It is quite another, and more troublesome, matter to ask a reasonable Jew or Muslim to support a list that extends legal entitlements to animals which by implication compromise their religious freedom. For here, it turns out that Nussbaum’s list deprives him of capabilities to function (the practice of kosher or halal slaughter). [43] In the former case, the list is not ‘freestanding’ in the sense that it does not equally promote reasonable adherence to some comprehensive doctrine like Stoicism. In the latter case, the list is not ‘freestanding’ in the sense that it effectively obstructs reasonable adherence to some comprehensive (religious) doctrine—which disqualifies its political liberal credentials. [44]

29In comparison with Nussbaum, the definition of political liberalism Rawls initially proposed appears more exclusionary with regard to the scope of citizens joining the overlap given the theoretical and epistemic dimensions of its notion of reasonableness. But the appearance is illusive. Rawls’s road to an overlapping consensus is comparatively more accessible on account of its restriction of the range of issues in the subject-matter of political justice and its abstinence from proposing a worldwide, cross-cultural overlap. For such an ambitious project as the pursuit of an overlapping consensus on liberal conceptions of justice, it is certainly not superfluous to stress the importance of favorable historical and sociological conditions for its emergence and, consequently, be skeptical about the cross-cultural acceptability of those conceptions. The fact, as he says, that ‘we are the beneficiaries of three centuries of democratic thought and developing constitutional practice’ and have recourse to ‘a fund of implicitly shared ideas and principles’ in Western political culture must be counted as indispensable preconditions for a project so exigent as political liberalism. [45]

30Concurrence with Rawls on the importance of historical conditions does not, of course, imply agreement with his identification of these conditions, placing, as he does, such singular emphasis on the Reformation and subsequent practices of religious toleration in Europe. Nussbaum is right to point out the troublesome aspects of his historical reading which seems to suggest, moreover, that political liberalism is only at home in those Western countries that were the scene of the Reformation (excluding those countries that were not, or less, marked by this experience). [46] In this respect, Larmore invigorates the historical diagnosis in terms of the Romantic critique of individualism in modern Western culture. [47] But Nussbaum marginalizes the importance of favorable historical conditions for an overlapping consensus: ‘the contingencies of history are not part of the definition of political liberalism, but part of what helps us assure ourselves that such a conception can be stable for the right reasons.’ [48] Indeed, she qualifies Rawls’s tracking of political liberalism’s roots in modern Western history as ‘more than a little arrogant,’ mentions some democracies outside the Western world and insists on the international and cross-cultural origins of political liberalism in the United Nation’s Universal Declaration on Human Rights. [49] Nussbaum, in effect, seems to conceive the latter as a prelude to a worldwide overlap on her capabilities list instead of recognizing the declaration as involving persistent political controversy and inviting radical criticisms in both Western and non-Western contexts. And yet Nussbaum remains unequivocally optimistic about the feasibility of the list for cross-cultural allegiance, which may well explain her motivation to maximize the inclusive scope of participants joining the overlap the first place: ‘I believe that the ideas of the capabilities approach do have deep roots of many kinds in many cultures.’ [50] But so demanding a criterion of justification as acceptability to all who are reasonable can hardly be fulfilled if one does not heed Rawls’s dictum that ‘the aims of political philosophy depend on the society it addresses.’ [51]

31In this respect, it is important to note that Rawls also stresses favorable sociological conditions to deem the prospect of an overlapping consensus on political justice a realistic utopia, in particular historically emerged practices of moral learning in a democratic political culture. Rawls takes his cue from Rousseau, Hegel and Durkheim to insist that as individuals mature and become socialized in shared institutions, they develop an attachment to and acquire beliefs in the norms, ideals and principles of political justice which are latent or imperfectly expressed in these institutions. [52] In other words, the emergence of a stable overlap on political justice must draw, in Müller’s words, on ‘the conscious liberalization through socialization’ of individuals who, even if they go their own ways in pursuing the good, are fortunate to grow up in a common democratic political culture in which their sense of justice is nurtured. [53]

32Moreover, Rawls’s prudence to refrain from pursuing a worldwide, cross-cultural overlap is accompanied by his related reluctance to stretch the subject-matter of political justice. That means that political justice is not expected, for instance, to solve such divisive problems as the animal question:


‘Finally, there is the problem of what is owed to animals and the rest of nature. While we would like eventually to answer all these questions, I very much doubt whether that is possible within the scope of justice as fairness as a political conception. […] In any case, we should not expect justice as fairness, or any account of justice, to cover all cases of right and wrong. Political justice needs always to be complemented by other virtues.’ [54]

34Judging Rawls’s omission of the animal question from justice as fairness as an error and inadequacy, [55] Nussbaum takes up the task of rectifying this and other shortcomings with great eagerness. But to stretch the range of issues covered by a liberal conception of justice is to frustrate the inclusiveness of the scope of citizens for which that conception must be acceptable. Hence, although a liberal conception of justice should strive to be as complete as possible, ‘we do best’, as Rawls insists,


‘not to assume that there exist generally acceptable answers for all or even for many questions of political justice. Rather, we must be prepared to accept the fact that only a few questions we are moved to ask can be satisfactorily resolved. Political wisdom consists in identifying those few, and among them the most urgent.’ [56]

36Nussbaum’s amendment of political liberalism urges Rawls and Larmore to drop their theoretical and epistemic dimensions of reasonableness in order to ‘purchase a wider and more inclusive notion of respect.’ [57] But it turns out to be more urgent for Nussbaum to disburden her capabilities list of its extensive range of controversial issues if political liberalism is to deliver on its justificatory promises. This seems to be a minimal requirement for the feasibility of an inclusive, stable overlap on her or any other aspiring member of the family of liberal conceptions of justice. To put it in somewhat metaphorical terms: as soon as you try to extend the frontiers of justice, you will inevitably run up against the borders of political liberalism. [58] By contrast, Rawls restricts the subject-matter of political justice, confines its site of regulation to society’s basic institutions, and emphasizes the importance of both favorable historical conditions and socialization in a democratic culture. This strategy lends greater credibility to Rawls’s search for a stable overlap than to Nussbaum’s. And yet to credit Rawls with a comparatively more hospitable road towards an overlapping consensus does not mean that he is able to convince us of the desirability and feasibility of reaching that destination.

…To the controversial character of the search for an overlapping consensus

37Although Rawls is more cautious than Nussbaum to avoid the trade-off in inclusiveness we have diagnosed so far, the unfortunate fact stands that his own conception of justice in general, and its index of primary goods in particular, is not entirely free from similar charges of controversy and perfectionism either. [59] Indeed, if political liberalism follows through on its own requirement (to make a liberal conception of justice acceptable to all who are reasonable), it gets caught in a regressive logic on the substantive content of the consensus. As Nelson starkly put it, it seems unavoidable that this content must ‘begin and end with equal liberty’ in case it wants to avoid the charge of controversy by, and thus the unwarranted exclusion of, otherwise reasonable citizens. [60] However, political liberals attentive to this problem think it is possible to avoid Nelson’s conclusion. They have made different suggestions to account for the feasibility of an overlapping consensus to guide public reason and render society stable ‘for the right reasons.’

38Brooks, for instance, suggests that a stable overlap (although not redundant) is but one source of stability and ‘not the only shared platform’ of reasonable and respectful citizens. Consequently, he juxtaposes the overlap to other platforms such as ‘our shared endorsement of constitutional essentials […] the two principles of justice and requirement that all citizens are maintained above a social minimum.’ [61] Alternatively, Quong contends that the overlap must be conceived as the starting point in which citizens proceed on the basis of their shared agreement on ‘the fundamental idea of society as a fair system of cooperation between free and equal citizens’ rather than conceiving it as the final culmination of justification in political liberal terms. [62] According to Quong, such an overlap is more feasible than one that has the ambition of concurring upon fully specified liberal conceptions of justice. Thus, both Brooks and Quong account for the feasibility of an overlap by restricting the substantive content of agreement to Rawls’s conceptions of the person and of society. [63]

The structure of the overlapping consensus and the controversial character of Rawls’s conceptions of the person and of society

39But these alternative proposals turn out, upon further inquiry, to be unconvincing. To gauge their elusiveness, we must first briefly recollect the structure of an overlapping consensus as Rawls originally proposed it. [64] First, the overlapping consensus has ‘depth’ insofar as it subscribes to his conceptions of the person and of society. Second, its ‘breadth’ is measured by the extent to which it transcends merely procedural principles and includes substantive principles to regulate the basic structure of society in the threefold sense of guaranteeing basic rights and liberties, assuring fair equal opportunity and covering basic needs. Finally, its content is as ‘specific’ and ‘focused’ as the size of the family of liberal conceptions of justice is small. [65]

40Against this backdrop, it appears that Brooks’s and Quong’s solutions are really no solutions at all. First, it is difficult to see how an overlapping consensus which has but depth of agreement will succeed to give practical guidance to public reason and reinforce society’s stability if it has no more to offer than subscription to such a notorious abstraction as ‘the fundamental idea of society as a fair system of cooperation between free and equal citizens’—regardless of the value attached to that subscription in principle. [66] And this difficulty explains perhaps why, in their respective justifications, Nussbaum and Rawls pursue an overlapping consensus on fully specified liberal conceptions of justice. But further, and more problematic, Brooks and Quong seem to take for granted, rather than argumentatively support, the possibility of reaching an overlapping consensus on the purportedly acceptable conceptions of the person and of society that Rawls has formulated. Yet the acceptability of an overlap so restricted is not less problematic.

41To see why the acceptability of a merely ‘deep’ overlap on Rawls’s conceptions of the person and of society is jeopardized, we must recall the trade-off in inclusiveness between the scope of reasonable citizens participating and the range of issues covered in the subject-matter of political justice. Given political liberalism’s self-imposed requirement of acceptability of the liberal conceptions of justice to all who are reasonable, it follows that the trade-off must favor the inclusiveness of the scope of reasonable citizens and hence provokes a regressive logic in the substantive moral content of the consensus. [67] Pushing this regressive logic to its ultimate conclusion means that all who are reasonable, given their shared affirmation of the political value of equal respect for persons, can only agree upon the free and equal status of individuals qua citizens by way of assertion. It is not to be expected that citizens form a ‘deep’ overlapping consensus on equal liberty for all on the basis of an underlying conception of the person as prescribed by Rawls. The overlap cannot reach deeper than the mere assertion of the free and equal status of citizens as each respectful citizen must find the peculiar or idiosyncratic comprehensive grounds on which he agrees with the assertion out for himself (rather than a required congruence of these grounds with a specified conception of the person which is itself vulnerable to the charge of controversy).

42This problem has been meticulously elaborated by those who restrict their reservations to an internal critique of political liberalism. Wenar, for instance, convincingly argues that Rawls’s conception of the person is too extensive and rightly doubts whether his own slimmed-down version of that conception could pass political liberalism’s self-imposed test of freedom from controversy. ‘Is the conception of the reasonable person that grounds even a limited consensus,’ he asks, ‘too intolerant of religious or philosophical conceptions of the person?’ And he conjectured, accurately in my view, that the charge of controversy by reasonable citizens could affect not merely the political liberal ‘presentation’ but also the substantive moral content of justice as fairness—that is, implicate it into a regressive logic. [68] More recently, Freyenhagen has taken this internal critique even further in his refutation of the acceptability of pursuing an overlapping consensus ‘on the grounds of a moral conception of personhood’ and recommends the exploration of a more realist, historically-informed route to reach a stable overlap in its stead. [69]

43But the trouble with these internal critiques of political liberalism lies in their singular focus on exposing the controversial character of Rawls’s conception of the person to the neglect of his conception of society. It may be speculated whether this omission is mere neglect or assumes without argument the acceptability of Rawls’s account of society. Either way, Rawls’s understanding of society ‘as a fair system of cooperation’ merits scrutiny. For it must be remembered that in Rawls’s political liberalism, the conception of society is prior to that of the person or, more specifically, the latter is inferred from the former: ‘[since] our account of justice as fairness begins with the idea that society is to be conceived as a fair system of cooperation […],’ Rawls insists, ‘we adopt a conception of the person to go with this idea.’ [70] Thus we have reason to expect that if, as the internal critics maintain, Rawls’s account of the person may not be acceptable to all who are reasonable, so may be the conception of society from which it is explicitly derived. My contention is that this conception is indeed impermissibly contentious and that its exposition strikes at the root of the philosophically controversial character of Rawls’s pursuit of an overlapping consensus as such.

44In order to substantiate this contention we must first note an important ambiguity in Rawls’s conception of society. In A Theory of Justice Rawls contends that the notion of society as ‘a cooperative venture for mutual advantage’ should be understood as a ‘social union of social unions’ which is to fulfil the ‘shared final ends’ citizens are alleged to hold (by virtue of their sense of justice). And although these shared final ends to which society is teleocratically oriented should not be taken to constitute some ‘dominant end’ that compromises the individual’s pursuit of the good, the latter is but ‘a plan within a plan, this superordinate plan being realized in the public institutions of society.’ [71] Yet in Political Liberalism Rawls clouds this conception with the amendment that society is to be conceived as having ‘no final ends and aims in the way persons and associations do,’ reserving these to comprehensive views of the good which citizens pursue individually or in association with others.

45In order to explain this amendment, Rawls contends that his conception of society is reminiscent of Oakeshott’s ideal character of practical (civil) association in contradistinction to purposive (enterprise) association. [72] Oakeshott’s distinction postulates that free and equal citizens who are associated in cooperative ventures for the pursuit of shared ends must have the possibility to dissociate. Any conceivable cooperative enterprise, then, ‘is necessarily constituted by the continuous choice of each associate to be related to others in terms of a common purpose, a choice from which he must be able to extricate himself.’ [73] Practical (civil) association is, by contrast, of a categorially distinct kind. Here, free and equal citizens are related to each other in the mutual recognition of laws that impose moral conditions which qualify their self-chosen pursuit of the good ‘adverbially,’ not in terms of a common purpose or shared end. [74] To illustrate: if the general rules of grammar are indifferent to the actual purposes (if any) of our particular utterances in language, so are the laws of civil association to the substantive aims of our self-chosen actions in conduct. [75] Taken as such, practical (civil) association is nomocratic, not teleocratic. It cannot have a shared end, common good or substantive purpose other than its own preservation over time. And even though the multiplicity of moral conditions that practical (civil) association establishes among free and equal citizens may be abridged as a condition of ‘peace’, ‘order’, ‘stability’ or indeed ‘justice’ (with which it is ‘coeval’), these are not themselves ‘shared final ends’ that await substantive satisfaction but only continuously present conditions without which the specific, transitory and self-chosen pursuit of ends and aims will be found wanting. [76]

46Now, since association in Rawls’s well-ordered society, the ‘basic structure’ of which prominently includes the non-optional state and compulsory means of its government, constitutes a relationship from which we cannot extricate ourselves without becoming either an outlaw or subject to another of its like, [77] it follows that this society cannot, indeed, have ‘shared final ends.’ For to picture society (the membership of which is involuntary) as a cooperative venture is to attribute it with a compulsory substantive purposiveness which renders it a self-contradiction within which voluntarily purposive association by free and equal citizens is compromised. [78] Consequently, Rawls’s removal of ‘shared final ends and aims’ from his conception of society as ‘a fair system of cooperation’ is not merely a semantic issue of minor detail to be easily disposed of.

47Rawls is aware of the difficulty involved, given his explicit reply to Terry Nardin’s critique that his conception of a well-ordered society, this ‘cooperative venture for mutual advantage,’ envisages a purposive (enterprise) rather than a practical (civil) association. But this reply, underscoring the difference between the ‘common shared end’ of political justice and the aims or purposes informed by comprehensive accounts of the good, is not satisfactory. [79] For although Rawls offers generous leeway to our comprehensive pursuits of the good, these are still considered subsidiary plans which must fit in and conform to the fulfillment of that ‘superordinate plan’ of society that imposes, not a variety of nomocratic conditions, but the teleocratically shared end of justice. This is itself reason enough for Oakeshott to object that Rawls’s conception of society is at considerable distance from his ideal character of a practical (civil) association, since it is purposively directed ‘to the achievement of a substantive state of affairs’ guided by the superordinate purpose of ‘fairness.’ He acutely reminds us that practical (civil) association ‘bakes no bread, it is unable to distribute loaves or fishes (it has none).’ [80] And for Oakeshott, the slope of compulsory purposiveness from the pursuit of ‘fairness’ in Rawls’s well-ordered society to the pursuit of ‘righteousness’ in Calvin’s Geneva is slippery indeed. But his account of practical (civil) association is an ideal character and not an historical identity. Taken to bear upon an historically ambiguous identity like the state, Oakeshott does not deny the demands that Rawls places upon government as part of the basic structure of a well-ordered society since he not only grants the provision of ‘what the Romans call res publicae’ but also attends to basic needs that the social minimum must secure. [81]

48The crucial difference is that Oakeshott, unlike Rawls, does not attempt to present these provisions (public goods and the social minimum) as integral parts of a conception of society the definition of which assumes a self-contained harmony and is without remainder. These provisions rather exemplify Oakeshott’s diagnosis that with the emergent assertion that all are free and equal, ‘the modern European political consciousness is a polarized consciousness’ with regard to the role of government. [82] It is in the tension of this polarized consciousness that our conception of society continues to oscillate between the ideal characters of practical (civil) and purposive (enterprise) association, between the disposition to unfold self-chosen plans in which the adverbial qualifications of law are recognized and the tendency of some unchosen ‘superordinate plan’ of government to enable (as with Rawls’s ‘fairness’) but also, and historically seen unfortunately more often, to impair and overwhelm these plans.

49By contrast, the ‘cooperative venture for mutual advantage’ that Rawls proposes as the object of a ‘deep’ overlapping consensus ultimately springs from his ardor to overcome any profound polarization in our political consciousness. This in turn stems from his philosophical yearning for unity or, more specifically, the Hegelian quest for reconciliation. As is well-known, Rawls lists the quest for reconciliation, of providing society with conclusive solutions to rationally conceived problems, among his most important tasks:


‘[political] philosophy may try to calm our frustration and rage against our society and its history by showing us the way in which its institutions, when properly understood from a philosophical point of view, are rational, and developed over time as they did to attain their present rational form. This fits one of Hegel’s well-known sayings: ‘When we look at the world rationally, the world looks rationally back.’ He seeks for us reconciliation—Versöhnung—that is, we are to accept and affirm our social world positively, not merely to be resigned to it.’ [83]

51This Hegelian quest for ultimate reconciliation underlies ‘the right reasons’ that are to render society stable, and best explains what Larmore calls the exceptional importance Rawls ascribes to the pursuit of a stable overlap. [84] Nowhere is this philosophical desire more manifest than in the self-contained harmony of his conception of society, despite the fact that it still equivocates between practical and purposive association.

The impermissibly contentious Hegelian anchorage of Rawls’s consensualism

52But it is precisely the contentious character of this commitment to rational reconciliation, more so than the doubtful acceptability of what Rawls offers as the morally ‘right reasons’ to join the overlap, that makes the pursuit of an overlapping consensus on his conception of society so problematic. We know that acceptability of these ‘right reasons’ to all who are reasonable is doubtful enough, because mutual affirmation of the political value of equal respect neither vindicates (beyond a merely prudential modus vivendi) Rawls’s conception of the person nor his demand that society shall be understood as a fair cooperative venture. To some reasonable citizens this self-contained conception of may be attractive, others remain skeptical about the attempt to reconcile the lingering tension between social unity (postulating society’s superordinate ‘political’ end of fairness) and individual plurality (postulating the absence of final ends and aims in society).

53It may be objected here that the charge of compulsory purposiveness in Rawls’s account of a well-ordered society misses the point. Rawls may be referring to Oakeshott’s notion of a non-purposive (civil) association as a model for his conception of society, but not in order to divest this conception of its teleocratic aspects. The question, as Rawls sees it, is not whether a well-ordered society refrains from pursuing a superordinate end because its membership is involuntary, but whether this superordinate purpose of fairness is strictly political. In short, at stake is not society’s teleocracy tout court but the character of this teleocracy, namely, whether it is political in an appropriately ‘thin’ manner or not. Two observations are in order here. First, if this objection were true, then Rawls’s own simile to Oakeshott’s notion of non-purposive relationship is arguably more confusing than enlightening. Why does he not straightforwardly criticize Oakeshott’s notion and the cogency of the distinction between teleocracy and nomocracy, claiming that the character (political or not) rather than existence of society’s compulsory purposiveness is the crucial issue to adequately address the tension between social unity and individuality?

54But more importantly, to justify the teleocratic aspect of a well-ordered society on account of its strictly political or constitutional character presupposes what remains to be established but cannot be established on political liberalism’s own terms of freedom from controversy. If I am a reasonable citizen with an ascetic comprehensive account of the good, I may well reject the claim that a society regulated by justice as fairness remains strictly political in its purposiveness and site of regulation. My comprehensive asceticism stands at odds with the purportedly ‘political’ view of society as composed, in an important sense, of economically productive members who are to generate and share more rather than less of the primary good of income and wealth. [85] Indeed, I may reasonably reject Rawls’s assurance of a well-ordered society’s strictly political purposiveness without thereby denying the respect that I owe to my fellow citizens. The problem is, again, that the distinction between what counts as ‘strictly political’, ‘metaphysically abstemious’ or ‘thinly moral’, on one hand, and what exceeds these bounds, on the other, is itself political and a matter of contestation. If the political liberal where to give us a set of criteria by which to decide this question, that set would itself be vulnerable to the charge of being (epistemologically or otherwise) controversial by reasonable citizens, which would have no bearing on their respectfulness. Political liberalism’s self-imposed criterion of acceptability of the conception of justice to all who are reasonable and respectful therefore continuously takes hostage of its own framework of justification. In Habermas’s words: ‘Fallibilism and continued controversies on all fronts are the price to be paid for metaphysical abstinence.’ [86]

55In this regard, agreement with Oakeshott’s diagnosis on our polarized political consciousness is not, of course, required in order to see that the pursuit of an overlapping consensus on what makes for a just and stable society is itself inspired by the impermissibly contentious philosophy of Hegel. As Müller puts it: ‘Rawls sought (and thought that human beings in general sought) a world in which rational and reasonable men and women could recognize their world as itself rational and reasonable—and reconcile themselves to it (and their own history).” [87] It is hard not to include Hegel’s yearning for rational reconciliation, culminating in a self-contained and harmonious conception of society, among the most troublesome and controversial philosophical problems of modernity. If modernity’s alleged fragmentation means that some, like Rawls or indeed Habermas, want to console us in an imaginary reconciliation or rational completion of an unreconciled or unfinished project, so others may find solace in their acceptance that this project is perhaps irreconcilable and unfinishable—without relinquishing their commitment to justificatory discourse or resigning to the injustices of our contemporary social world. Or there may be reasonable, respectful citizens who are informed by comprehensive views which, far from encouraging them to partake in a philosophical project of rational reconciliation with society, instead try to ‘humble’ reason’s elusive grip on the world and society (as Nussbaum has pointed out admirably). Still others may adhere to the notion of reconciliation but see its province in spiritual experiences and not in the reality of a rational social world.

56It may be protested in Rawls’s defense that his political liberalism carefully avoids allegiance to Hegel’s metaphysics and philosophy of history, but this avoidance does not shield it from critiques of reasonable citizens who could take issue even with his milder historicism. Indeed, if I am a reasonable citizen whose peculiar comprehensive Epicureanism is at odds with all forms of teleology, I have good reasons to reject Rawls’s ‘politically’ purposive conception of society and its promise of reconciliation in the pursuit of an overlapping consensus on political justice. This rejection, again, has no bearing on my respectfulness towards others. The problem that haunts political liberalism, then, is that it cannot exclude many reasonable citizens who could claim that the pursuit of an overlapping consensus remains controversial (as it can justifiable exclude unreasonable citizens whose disrespect is manifest in their mad and aggressive doctrines). To exclude or dismiss these respectful citizens as odd eccentrics whose numbers are negligible would clearly violate political liberalism’s self-imposed test of freedom from controversy.

57Quite apart from where one stands in these speculative and deeply controversial matters, all those who are respectful and reasonable are left with at least two conclusions. First, it is difficult to see how an overlapping consensus which cannot go ‘deeper’ than the abstract assertion of equal liberty can contribute to the stability of our currently existing constitutions. All constitutions do, of course, go much further than the abstract assertion of equal liberty, but these may also be understood as enduring objects of contestation among citizens who, through their socialization and history, share an attachment to the values and ideals of justice but profoundly disagree on both their abstract meaning and concrete requirements. Second, whereas previous internal critiques illuminate the difficult odds of a stable overlap because the conception of the person is too controversial, the impermissibly contentious Hegelian anchorage on which this consensus rests and its proposed teleocratic conception of society is likewise obstructive to the success of political liberalism as a framework of justification. Thus, although internal critiques of political liberalism point out controversies that arise within the determination of the overlap’s breadth, depth and focus, they assume that this search for consensus is itself unproblematic. But to these internal critiques we add the contentious character of the search for an overlapping consensus as such, as reflected in Rawls’s conception of society and its thinly framed political purposiveness. Political liberalism, then, defeats itself on its own terms of acceptability to all respectful and reasonable citizens.


  • [1]
    References will be given to the second, paperback edition. Cf. John Rawls, Political Liberalism (New York, Columbia University Press, 1996).
  • [2]
    For major statements of deliberative democracy, cf. the collection of essays in James Bohman and William Rehg (eds.) Deliberative Democracy. Essays on Reason and Politics (Cambridge, MA: The MIT Press, 1997) and Charles Girard and Alice Le Goff (eds.) La Démocratie délibérative: anthologie de textes fondamentaux (Paris: Hermann, 2010).
  • [3]
    Important articulations of the agonistic strand of political theory are, e.g., Jacques Rancière La Mésentente: Politique et Philosophie (Paris: Galilée, 1995), Bonnie Honig Political Theory and the Displacement of Politics (Ithaca: Cornell University Press, 1993) and Chantal Mouffe The Democratic Paradox (London: Verso Books, 2000). For an account that aspires to integrate deliberative and agonistic elements, cf., e.g., John Dryzek and Simon Niemeyer ‘Reconciling Pluralism and Consensus as Political Ideals’ in American Journal of Political Science 50 (2006), pp. 634–649.
  • [4]
    Newey cited in William Galston ‘Realism in Political Theory’ in European Journal of Political Theory 9 (2010), pp.–385–411; cf. also Enzo Rossi and Matt Sleat ‘Realism in normative political theory’ in Philosophy Compass 9 (2014) pp. 689–701.Online
  • [5]
    Martha Nussbaum, ‘Perfectionist Liberalism and Political Liberalism’ in: Philosophy & Public Affairs 39 (2011a), p. 35.Online
  • [6]
    Important articulations of the perfectionist strand of liberal political theory are, e.g., Joseph Raz The Morality of Freedom (Oxford: Clarendon Press, 1986) and Steven Wall Liberalism, Perfectionism and Restraint (Cambridge: Cambridge University Press, 1998); for an overview, cf. the collection of essays by Alexandre Escudier and Janie Pélabay (eds.) Le Perfectionnisme liberal: anthologie de textes fondamentaux (Paris: Hermann, 2016).
  • [7]
    Ibid.; ‘Rawls’s Political Liberalism: A Reassessment’ in: Ratio Juris 24 (2011b), pp. 1–24.Online
  • [8]
    Recall that the items on Nussbaum’s are life; bodily health; bodily integrity; senses, imagination, and thought; emotions; practical reason; affiliation; other species; play; control over one’s (political and material) environment. The turn to political liberalism is apparent in, e.g., Martha Nussbaum, Creating Capabilities: the Human Development Approach (Belknap Press, 2011c); Frontiers of Justice. Disability, Nationality, Species Membership (Harvard University Press, 2006a); Woman and Human Development. The Capabilities Approach (Cambridge University Press: Cambridge, 2000).
  • [9]
    Nussbuam (2011c), pp. 80–92, p. 94.
  • [10]
    Martha Nussbaum ‘Human Functioning and Social Justice: In Defense of Aristotelian Essentialism’ in Political Theory 20 (1992), pp. 214–215; cited in Alison Jaggar ‘Reasoning about Well-being: Nussbaum’s Methods of Justifying the Capabilities’, in: Journal of Political Philosophy 14 (2006), p. 302. Nussbaum now regards earlier publications with more thick and comprehensive accounts of the good as ‘juvenalia’. Cf. the ‘Response to the papers’ in a symposium on her work in International Journal of Social Economics (40) 2013, p. 664.
  • [11]
    Nussbaum (2011c), p. 90.
  • [12]
    Martha Nussbaum, ‘Aritstotle, Politics and Human Capabilities: A Response to Anthony, Arneson, Charlesworth, and Mulgan’, in: Ethics 111 (2000b): pp. 117–118.
  • [13]
    Nussbaum (2011c), p. 28; p. 90.
  • [14]
    ‘The fact of reasonable pluralism is not an unfortunate condition of human life, as we might say of pluralism as such, allowing for doctrines that are not only irrational but mad and aggressive.’ Rawls (1996), p. 144.
  • [15]
    Nussbaum (2011a), pp. 16–18.
  • [16]
    For ‘although such a view will contain tensions that may be difficult to negotiate [with a liberal conception of justice],’ she grants that ‘not every case of metaphysical differentiation is a case of political unreasonabless’, that is, expressing a denial of equal respect for fellow citizens holding other comprehensive beliefs about the good life. Cf. ibid (2011a), pp. 18–19 and Nussbaum (2011b), p. 10. Note that Wenar, who is also sympathetic to Rawls’s project, does not permit this leeway: ‘to allow a conflict of political values between the political conception and the comprehensive doctrine would be to see citizens as schizophrenic […]’ Cf. ‘Political Liberalism: An Internal Critique’ in Ethics 106 (1995), p. 53.
  • [17]
    Cf., e.g., Rawls (1996), xxxix, p. 147, p. 156.
  • [18]
    Nussbaum (2011a), p. 16.
  • [19]
    Rawls (1996), p. 59; cited in Nussbaum (2011a), p. 25.
  • [20]
  • [21]
    Ibid., p. 26, p. 32.
  • [22]
    Ibid., p. 33.
  • [23]
    Steven Wall, anticipating the problem I want to press further in this paper, makes the useful distinction between ‘the reasonableness of a set of comprehensive beliefs from the reasonableness of beliefs that bear on the justification of a conception of justice’, cf. Steven Wall, ‘Perfectionism, Reasonableness, and Respect’ in Political Theory 42 (2014) p. 475.
  • [24]
    In a recent book, where Nussbaum argues that the overlapping consensus should be propped up by ‘political emotions’, this need for rapprochement is qualified: ‘overlapping consensus does not require an absence of tension between the comprehensive view and the political view. Most people live with tensions in at least some parts of their belief system, and they are constrained only by the degree of their commitment to consistency as a norm.’ Reasonable people, she continues, ‘[may] be of two minds, and live with divided allegiances.’ Cf. Martha Nussbaum Political Emotions. Why Love Matters for Justice (Harvard: Harvard University Press, 2013), p. 131. Compare with Wenar (1995) and note 16 supra.
  • [25]
    Nussbaum (2011a), p. 31; Rawls (1996), p. 159. I agree with Fabian Freyenhagen, who is not convinced that this empirical claim is of help to the political liberal project, since it is ‘not the completeness or systematicity of comprehensive doctrines, but that citizens have firm commitments’ which obstructs the feasibility of an overlapping consensus. Nevertheless, it is worthwhile to reiterate both Rawls’s and Nussbaum’s invocation of this claim to illuminate the comparative feasibility to justify their liberal conceptions of justice in political liberal terms. Cf. Fabian Freyenhagen ‘Taking Reasonable Pluralism Seriously: an Internal Critique of Political Liberalism’ in Politics, Philosophy & Economics 3 10 (2011), p. 333.
  • [26]
    Nussbaum (2006), p. 388.
  • [27]
    Ibid., pp. 296–298; Martha Nussbaum, ‘Political Liberalism and Respect: A Reply to Linda Barclay’, in: Nordic Journal of Philosophy 4 (2003), pp. 34–35.
  • [28]
    Nussbaum (2006), p. 16.
  • [29]
    Ibid., p. 351; Nussbaum (2011c), pp. 157–158.
  • [30]
    Nussbaum (2006), pp. 383–384, p. 391.
  • [31]
    Nussbaum (2011b), p. 5.
  • [32]
    Charles Larmore ‘The Moral Basis of Political Liberalism’ in The Journal of Philosophy 96 (1999), p. 600.
  • [33]
    Nussbuam (2006), p. 400, pp. 395–396 and note 56.
  • [34]
    Brooks refers to Thomas Pogge, cf. Thom Brooks ‘The Capabilities Approach and Political Liberalism’ in Rawls’s Political Liberalism, eds. Thom Brooks and Martha Nussbaum (New York: Columbia University Press, 2015) p. 164.
  • [35]
    In spite of Nussbaum’s mention of the distinction between comprehensive and perfectionist articulations of liberal doctrine. Cf. Nussbaum (2011a), p. 5. Nelson alludes to the conflation of comprehensiveness vs. partiality with thickness vs. thinness in his discussion of Rawls’s reformulated account of primary goods. Cf. Eric Nelson ‘From Primary Goods to Capabilities: Distributive Justice and the Problem of Neutrality’ in Political Theory 36 (2008), p. 114.
  • [36]
    Usage of a ‘thick’ vs. ‘thin’ articulation raises the expectation of making explicit which criterion or set of standards renders a concept either ‘thick’ or ‘thin’. But the problem, of course, is that the stipulation of such criteria runs itself the risk of being epistemologically controversial. Raz, whom Nussbaum regards as a prominent advocate of perfectionist liberalism, is skeptical about the mere possibility of substituting a ‘thin’ for a ‘thick’ articulation of a normative concept. Cf. Joseph Raz ‘The Problem of Authority: Revisiting the Service Conception’ in Minnesota Law Review 90 (2006) p. 1007.
  • [37]
    Nussbaum (2006), p. 392.
  • [38]
  • [39]
    Rawls (1996), p. 156.
  • [40]
    Nussbaum (2006), p. 404. As Nussbaum states: ‘it appears that the best solution might be to focus initially on good treatment during life and painless killing, setting the threshold there, at first, where it is clearly compatible with securing all the human capabilities, and not very clearly in violation with any major animal capability, depending on how we understand the harm of a painless death for various types of animals. Even that threshold is utopian at present, but it seems to be realistically utopian.’ pp. 402–403. The bill, of course, is an example of how the controversial character of Nussbaum’s list is not ‘compatible with securing all the human capabilities’ and how her inclusive strategy is frustrated in the confrontation of their comprehensive views with the substantive moral content of the list.
  • [41]
    It is true the political liberalism’s alleged virtue is, precisely, that it can appeal equally to reasonable citizens with a religious overall account of the good as to those who adhere to, say, a form of atheism or agnosticism. Nevertheless, the motivation to include reasonable religious citizens, perhaps by the force of their number and because of the prominence of religions in history, seems undeniable to me. Cf., e.g., Nussbaum (2011a) and ‘A Plea for Difficulty’ in Susan Okin’s Is Multiculturalism Bad for Women? eds. Joshua Cohen, Matthew Howard an Martha Nussbaum (Princeton: Princeton University Press, 1999), pp. 105–114.
  • [42]
    Nelson, invoking the position of the reasonable celibate, aptly objects that ‘even if I myself consider sex to be sinful, I am required to fund someone else’s Viagra’ since opportunities for sexual satisfaction are part of the capability of bodily integrity on Nussbaum’s list. Cf. Nelson (2008), p. 100.
  • [43]
    Religious freedom is entailed in the capabilities of senses, imagination and thought; practical reason; affiliation.
  • [44]
    Cf. Ibid., pp. 101–102; p. 117 note 32. Nelson points to Jaggar’s and Dworkin’s charge that not all capabilities will be valued equally for the pursuit of some idea of the good, which in terms of the list’s freedom from perfectionism is less problematic than those which obstruct the pursuit of some non-rights-violating conception of the good. As regards the ‘standard move’ to insist upon the distinction between capability and functioning, I set the distinct problem of paternalism aside: in some instances, as Nussbaum admits, actual functioning and not capability will be required (that is, compulsory functioning will be required) in order to promote an individual’s ability to choose to actualize a capability into functioning. Claassen points to the expansionary dynamic of the approach’s unavoidable paternalism, which suggests that perhaps a ‘functionings approach’ is bound to overturn a ‘capability approach’. Cf. Rutger Claassen ‘Capability Paternalism’ in Philosophy & Economics 30 (2014), pp. 57–73; Cf. Nussbaum (2006), p. 172.
  • [45]
    John Rawls, ‘The Idea of an Overlapping Consensus’, in: Oxford Journal of Legal Studies 7 (1987), p. 2 and p. 6; Rawls (1996), p. 14 and p. 140. Cf. also ‘The Idea of Public Reason Revisited’ in The Law of Peoples (Cambridge: Harvard University Press, 1999), p. 143.
  • [46]
    Cf., e.g., Rawls (1996) p. 159; Nussbaum (2006), p. 302.
  • [47]
    Charles Larmore, ‘Political Liberalism’, in: Political Theory 18 (1990), p. 357 and The Morals of Modernity (Cambridge: Cambridge University Press, 1996), pp. 127–134.
  • [48]
    Nussbaum (2003), p. 32.
  • [49]
    Ibid., p. 32.
  • [50]
    Ibid., p. 31; Cf. also, e.g., Nussbaum (2006), pp. 298–306.
  • [51]
    Rawls (1987), p. 8.
  • [52]
    This aspect has been emphasized by, e.g., Bertrand Guillarme ‘Rawls et le libéralisme politique’ in Revue Française de Science Politique 46 (1996) p. 341; Rawls et l’égalité démocratique (Paris, Presses Universitaires de France, 1999), pp. 96–97 ; Joshua Cohen, cf., ‘A More Democratic Liberalism’ in Michigan Law Review 92 (1994), p. 1531; ‘Moral Pluralism and Political Consensus’ in The Idea of Democracy David Copp, Jean Hampton and Johh Roemer (eds.), pp. 271–291.
  • [53]
    Jan-Werner Müller ‘Rawls, Historian: Remarks on Political Liberalism’s ‘Historicism’’ in Revue Internationale de Philosophie 237 (2006), p. 334. However, as democratic political cultures mature and individuals attach more consciously to principles and ideals through socialization, disagreement rather than consensus may become ever more articulate with regard to both the abstract meaning of justice and its concrete requirements. I will elaborate on this below. Cf., e.g., Mark Cladis A Communitarian Defense of Liberalism: Emile Durkheim and Contemporary Social Theory (Stanford: Stanford University Press, 1992), pp. 256–286.
  • [54]
    Rawls (1996), p. 21. In A Theory of Justice (Cambridge: Belknap, 2005), pp. 504–512, Rawls explains why our conduct to animals imposes duties of ‘compassion and humanity’ but does not fall within the subject matter of political justice.
  • [55]
    Nussbaum (2006), p. 23.
  • [56]
    Rawls (1996), p. 156. For Rawls’s insistence on the completeness of a political conception, cf., e.g., Quong (2010), p. 162 and Thomas Scanlon ‘Rawls on Justification’ in The Cambridge Companion to Rawls ed. Samuel Freeman (Cambridge: Cambridge University Press, 2003), pp. 139–167.
  • [57]
    Nussbaum (2011a), p. 31.
  • [58]
    Ibid. Wall (2014) also criticizes Nussbaum’s reformulation of political liberalism in terms of the distinction between the ethical and epistemic dimensions of the notion of reasonableness. He maintains that Nussbaum’s exclusion of epistemic standards of reasonableness may lead to an ‘increase’ in the ‘likelihood’ that the ‘best’ liberal conception of justice will be rejected as the scope of citizens joining the overlap becomes more inclusive (reaching the merely ethically reasonable). Thus increased ‘legitimacy’ (in terms of the acceptability of a conception of justice by a more inclusive scope of citizens) leads to a ‘clear cost’ in terms of decreased ‘justice’ (in terms of the range of issues some conception must cover ‘best’). Cf. pp. 470–472, pp. 486–487 note 13. In my view, Wall’s critique must be formulated stronger and need not rely on his perfectionist liberal premises: the inclusiveness of the scope of citizens joining the overlap and the range of issues covered by a liberal conception of justice are inversely related and bound (not merely ‘likely’) to trade-off against one another. Moreover, in presenting a trade-off in favor of the inclusiveness of the scope of citizens (to the detriment of the ‘best’ conception of justice) as a ‘clear cost’, Wall begs the question for political liberals. Is there not also a ‘clear cost’ involved in decreasing ‘legitimacy’? Whether we theorize ‘legitimacy’ in juxtaposition to or as an integral part of a liberal conception of justice, it seems to me that the former must indeed have some ‘normative pull’ (p. 471) of its own if the conception of justice is not to be dismissed as at once illiberal and undemocratic. Also, Wall’s claim that the ‘likely’ trade-off vindicates the necessity to include epistemic elements in the notion of reasonableness (and that perfectionist liberalism is best able to do so) is problematic (p. 479). It is too simplistic to picture the increase of the inclusiveness of the scope of citizens (through a singular focus on the ethical sense of reasonableness) as implying ‘an unacceptable accommodation to unreason.’ (p. 472). On Wall’s account, that picture would perhaps suffice if we suppose that those included in the scope are only astrologers or new age religionists (Nussbaum’s own examples) or those whose comprehensive views assert the sovereignty of fairies, etc. But Wall’s rather pejorative characterization of these ethically reasonable citizens–who reason ‘poorly’ and ‘epistemically irresponsibly’ (p. 474, p. 487 note 17)—arguably does not apply to others who are also included, as my Stoic or religious or systems ecologist examples suggest. They might reasonably reject the ‘best’ conception of justice while not exhibiting ‘epistemic irresponsibility’ but, on the contrary, ‘epistemic excellence’. Finally, Wall’s claim that the notion of respect should be defined in terms of respect for rational agency (p. 478)—i.e. epistemic reasonableness—is also troublesome, since the ethical definition of respect does not commit one to a denial of respect for rational agency. However, it would lead us too far afield to inquire into the troublesome question whether the gist of this Kantian concept is to be found in ethically recognizing another person’s humanity or in his ability to comply with certain epistemic criteria for public reason or in some other meaning.
  • [59]
    Cf., e.g., Nelson, who invokes the position of the ethically reasonable ascetic and points to the problematic character of Rawls’s inclusion of income and wealth on the index, the all-purpose means Rawls says we even ‘prefer more of rather than less’. Cited in Nelson (2008), p. 109; Rawls (2005), p. 92.
  • [60]
    Nelson (2008), p. 112.
  • [61]
    Brooks and Nussbaum (eds.) (2014) p. 150.
  • [62]
    Jonathan Quong Liberalism Without Perfection (Oxford: Oxford University Press, 2010), p. 187.
  • [63]
    Quong expects a fully specified conception (e.g., the capabilities approach, justice as fairness) to be too demanding if it includes such component parts as, notably, principles or metric, cf. ibid. Brooks proposal, in which the overlap on the conceptions of person and society is to be counted as but one source of agreement, is a mystery to me. If it assumes agreement on other ‘shared platforms’ to be possible, why not include these in a more complete overlapping consensus? Why would separately constructed ‘shared platforms’ be more conducive to stability? Cf. Brooks and Nussbaum (eds.) (2014), p. 150 ff.
  • [64]
    This recollection benefits from the discussion in Joshua Cohen ‘Pluralism and Proceduralism’ in Chicago-Kent Law Review 69 (1994), pp. 589–618.
  • [65]
    Rawls (1996), p. 164.
  • [66]
    Quong is aware of this objection: ‘A critic might wonder, but what if the values of the overlapping consensus do not provide an effective basis for public reason, that is, what if they prove indeterminate or inconclusive with regard to important political questions that citizens must resolve via public reason?’ I do not see where, however ‘briefly’, he satisfactorily addresses this problem in his discussion of public reason. Cf. Quong (2010), p. 187 note 5 and chapter 9.
  • [67]
    This, of course, is precisely what makes political liberalism problematic for many a perfectionist liberal, for whom the trade-off must rather favor the inclusiveness of the range of issues covered by the subject-matter of political justice, so as to controversially adopt the ‘best’ liberal conception of justice in disregard of its acceptability to otherwise reasonable citizens.
  • [68]
    Wenar (1995), p. 61.
  • [69]
    Freyenhagen (2011), p. 336; For Rawls’s conception of the person, cf. Rawls (1996), pp. 29–35.
  • [70]
    Ibid., p. 18. The reader will notice that this mode of proceeding is reminiscent of Socrates account of justice in Book IV, 434d–435b, of Plato’s Republic (Cambridge: Cambridge University Press, 2003) pp. 129–130.
  • [71]
    Rawls (2005), p. 84, p. 520, pp. 526–528.
  • [72]
    Rawls (1996), pp. 41–42 note 44.
  • [73]
    Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975a) p. 119.
  • [74]
    Cf. ibid., p. 58 note 1. Thus, practical (civil) association qualifies our actions regardless of the question whether or not the self-chosen aims to be gratified in actions are pursued individually and / or in purposive (enterprise) association with others.
  • [75]
    Grammar does not tell us what to say, only how to say what we have chosen to utter in language. Likewise, laws do not tell us what to do or where to refrain from—that is, do not determine the ends and aims of our actions—but only how to go about in our self-chosen conduct.
  • [76]
    Cf. also Michael Oakeshott Hobbes on Civil Association (Indianapolis: Liberty Fund, 1975b), p. 49.
  • [77]
    This marks the qualitative difference between membership of society and the non-optional state from other forms of (initially) involuntary association—like the family or religious sect into which one is born. From the latter two, unlike the former, it is in principle possible to dissociate without becoming an outlaw or becoming subject to another association of its like even if the costs of exit may be very high.
  • [78]
    Oakeshott (1975a) p. 119; Michael Oakeshott, ‘On Misunderstanding Human Conduct: A Reply to My Critics’, in: Political Theory 3 (1976), p. 367.
  • [79]
    Rawls (1996), p. 42 note 44. For Nardin’s critique, see Terry Nardin Law, Morality and the Relations of States (Princeton: Princeton University Press, 1983), pp. 262–264.
  • [80]
    Michael Oakeshott ‘The Rule of Law’ in On History and Other Essays (Indianapolis: Liberty Fund, 1999), p. 170 note 13; p. 178.
  • [81]
    Oakeshott (1975a), p. 295; pp. 304 -305 note 3.
  • [82]
    Ibid., p. 320. For this comparative reading I use the terms ‘society’, ‘state’ and ‘government’ loosely, even if Oakeshott is determined to avoid usage of the word ‘society’ for reasons that need not be elaborated here.
  • [83]
    John Rawls Justice as Fairness: A Restatement, Erin Kelly (ed.) (Cambridge: Harvard University Press, 2001), p. 3; cited in Wenar (1995), p. 60; cf. also Freyenhagen (2011) p. 338 note 12. The saying is from Hegel’s Lectures on the Philosophy of World History, H.B. Nisbet (translation) (Cambridge: Cambridge University Press, 1975), where it is translated as: ‘Whoever looks at the world rationally wi ll find that it in turn assumes a rational aspect; the two exist in a reciprocal relationship.’ Cf. p. 29.
  • [84]
    Charles Larmore ‘Public Reason’ in Freeman (ed.) (2003), p. 388.
  • [85]
    Cf. note 59 supra.
  • [86]
    Habermas ‘Reply to My Critics’ in James Finlayson and Fabian Freyenhagen (eds.) Habermas and Rawls—Disputing the Political (New York: Routledge, 2011), p. 290.
  • [87]
    Müller (2006), p. 338. For elaboration of the affinity of Rawls’s political liberalism with Hegel’s project of rational reconciliation, see also Cohen (1994); Guillarme (1999).

This article argues that political liberalism is self-defeating as a framework of justification. The argument proceeds in two steps. First, political liberalism’s self-imposed criterion of acceptability to all who are reasonable is contended to lead to a regressive logic in the substantive content of its overlapping consensus. Second, the search for consensus is argued to be intrinsically controversial because of its inspiration by Hegel’s impermissibly contentious project of rational reconciliation. Via intertwined readings of Nussbaum, Rawls and Oakeshott, the paper concludes that political liberalism is undermined at the outset by its self-imposed standard to remain free from controversial commitments.


  • Nussbaum
  • Oakeshott
  • overlapping consensus
  • political liberalism
  • Rawls
  • reasonableness
Maurits De Jongh
Maurits de Jongh received his PhD from Sciences Po (CEVIPOF) in 2019. Previously, he studied political science (BA, MSc) at Leiden University, where he graduated cum laude in the political philosophy track. In 2016/2017 Maurits was a Fox International Fellow at Yale University. His research interests include public goods and the commons, the welfare state, fiscal and monetary policy, democratic thought, theories of justice and legitimacy, and the work of Hannah Arendt and Michael Oakeshott.
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