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:

14

‘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:

17

‘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:

33

‘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,

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‘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.

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:

50

‘[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.