We recall Socrates's argument that the tyrant is of all men the least powerful because he was unable to do anything to advance his own good, and all that he did made him worse (Gorgias 466). What of the many human beings today who cannot find a reason to be serious about their own good, who without being responsible toward themselves can hardly be responsible for others, and whose actions are driven by blind impulse from one self-destructive behavior to another? [Alan]Gewirth's principle presupposes the rational purposiveness it seeks to demonstrate. His principle says nothing to those who are not yet convinced that they ought to be purposive and should respect the liberal institutions of rights that are its expression.

 

Gewirth is peripherally aware of the problem and wonders aloud about the possibility that democratic majorities may "fail to endorse the redistributive justice of the supportive state" to implement the full recognition of rights (Reason and Morality, 321). In extreme cases, such as starvation, we can bypass the democratic process entirely; in the ordinary course of events, the process of "moral education" will render such emergency measures unnecessary. But what if the educational efforts are less than successful? No answer is forthcoming to this disturbing possibility.

 

Nor can much confidence be placed in the "deontic" principle that recognizes others as deserving of rights only to the "degree to which he approaches having the generic abilities constitutive of such agency" (142). This renders predictably the rights of the fetus minimal but more alarmingly establishes the Principle of Proportionality by which certain individuals could be virtually excluded from the class of prospective agents. The defense of liberal "reason and morality" turns out to be merely a rationalization of liberal agents for liberal agents by liberal agents.

The deontological eschewal of any foundation in nature or reality (meta­physics as it is derisively termed) condemns us to wandering within the artificial biosphere of liberalism. We have not yet been able to take a breath of fresh air. This is true of the other promising and brilliant rearticulation of liberal thought from the 1970s, Robert Nozick's Anarchy, State and Utopia. Nozick returned to the oldest of all liberal thought experiments, the state of nature, in order to find the structure that connected us all to the liberal state. In a condition of anarchy, human beings would inevitably begin to form and join mutual protection associations. They would recognize the benefits to be derived from having some reliable means of resolving disputes. Since such protective agencies cannot coexist, the dominant one would have to compensate individual and independent agencies for its monopoly over the enforcement of justice. In this way, a state comes into being that is fair because it at no point deprives anyone of the freedom enjoyed in the state of nature.

 

Much of the book is taken up with a response to Rawls and others who desire more than this minimal state. In a brilliant libertarian refutation of redistribution, Nozick argues that there is no justification for a more extensive state. Any efforts in the direction of "end-state" results could be obtained only at the cost of real invasions of rights "historically" acquired, and it would entail continuous political intervention in order to maintain the particular state of distribution desired. So the only state that can be justified without violating anyone's rights is the minimal state, although Nozick concedes that people may voluntarily agree to submit to a greater degree of government control for the sake of the benefits of living together. In principle, however, the minimal state is Utopia because it is a stable association in which "each person receives his marginal contribution" (Anarchy, State and Utopia, 302). That is, the state receives more of a contribution from each than they are likely to take out of it, and each receives more in return than they could obtain in any other association to which they could imagine belonging. The result is a stable exchange.

 

It is also infuriatingly glib as a conclusion, as most tellingly indicated by Nozick's own subsequent abandonment of this style of argument. There was, of course, always more to his argument than its style, as we will see later, but its reach here did little more than restate the most elementary liberal self-understanding. The exchange or contract model of liberal society, while it may have served as a convenient metaphor for public order, did not really explain how a state comes into being and maintains itself over time. All the significant questions concerning fidelity and trust in agreements are simply begged. The social contract is not like an economic exchange, in that it is perpetual and irrevocable even when the terms have changed. Nozick's book is one more signpost that points to the inability of the liberal construct to explain itself in any neutral terms.

 

The collapse of the foundational project within liberal theory has become so commonplace that it virtually amounts to a consensus. Indeed it is the starting point for all further discussion within the liberal context. While surrendering any claim to the objective status of individual rights, liberal theorists and liberal societies continue to insist that rights must be taken with absolute seriousness. The approach is exemplified by Ronald Dworkin who flatly rejects any "ghostly metaphysical" basis for rights, yet insists that they do not rest simply on the conventions adumbrated by legal positivism. People do have rights other than those explicitly created by the legislative process, and these rights are not derived from any conception of human nature. By examining the actual practice of judicial interpretation of rights, Dworkin discovers that the assumption of some extralegal foundation plays no role. Judges are quite capable of taking rights seriously, expanding and applying them simply on the basis of a constructive interpretation of the legal tradition.

 

But what then is the source of the rights presupposed by the legal tradition? Dworkin's answer is that we cannot get back beyond that point. Rights continue to be natural in the sense that they are not merely the product of convention, but they are also not dependent on some incorrigibly shaky definition of what human nature is. The only reliable basis for rights is the recognition that they are the indispensable condition for all political agreements concerning what we owe to one another. Commenting on Rawls, Dworkin observes that "the right to equal respect is not, on his account, a product of the contract, but a condition of admission to the original position"(Taking Rights Seriously, 181).

 

His development of Rawls is the assertion that it is not the contract that establishes rights, but the rights that establish the conditions for contract. These are rights we possess "not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice" (182).

 

Dworkin has gone on to clarify this precontractual priority of rights by distinguishing between internal and external skepticism. The internal skeptic questions the rightness of certain claims from within the perspective of a moral universe; the external skeptic raises metaphysical objections concerning the possibility of any moral truth. External skepticism neither adds nor subtracts anything to the struggle for the right moral or legal interpretation and can thus be safely neglected. All we need is the reassurance that our internal debates are in no way threatened by such metaphysical suspicions. "I hasten to add," Dworkin concludes, "that recognizing the crucial point I have been stressing — that the 'objective' beliefs most of us have are moral, not metaphysical, beliefs, that they only repeat and qualify other moral beliefs — in no way weakens these beliefs or makes them claim something less or even different from what they might be thought to claim. For we can assign them no sense, faithful to the role they actually play in our lives, that makes them not moral claims. If anything is made less important by that point, it is external skepticism, not our convictions" (Law's Empire, 83).

 

Once reassured of the reality of our convictions, we can accompany Dworkin in his overview of "law's empire." It is a sophisticated and inspiring conception of law as integrity, in which successive decisions are made on the principled basis that draws on the best interpretation of the whole tradition. Now that any appeal to an external natural law is out, the two plausible alternatives are conventionalism and pragmatism, a slavish attachment to strict construction and original intent or a risky invitation to all forms of judicial freethinking and arbitrariness. Dworkin avoids both of the pitfalls in his common-law model that retains the protected expectations of conven­tionalism and the flexibility of pragmatism by insisting that the resolution of conflicts must be on the basis of principles internal to the tradition of political morality as a whole.

 

The crux of the matter is, however, that we have not been able to avoid any appeal to what itself legitimizes the tradition. Moral and legal disputes have themselves proved so divisive that we have not been able to find a means of resolving them in the usual manner. We have not been able to begin with a set of rights that define the conditions for the conversation, because it is precisely the nature of those rights themselves that are in dispute. The common-law tradition historically rested on the natural-law tradition, and it has been the disappearance of the latter that has provoked the crisis of the former.²⁰ Dworkin's method of internal debate leaves us with no means of clarifying the very principles that constitute the tradition, so when a dispute arises there is no means of settling it through an expansion of the underlying principles. One cannot simply assert that the bedrock is the right to "equal concern and respect" when it is precisely the grounds for equal concern and respect that are at issue. How else are we to determine whose claim is to take priority when they come into conflict?

 

The nonfoundationalist approach represented by Dworkin and now widely practiced has the advantage of avoiding sterile philosophical debates that cannot reach a conclusion. By directing us back to the common-law tradition it reminds us that men do not have to explicate all of the grounds of their judgments before reaching well-founded conclusions. If we cannot resolve our theoretical differences we can return in the best liberal spirit to the development of a practical consensus. But it cannot paper over the crack of nihilism that has fissured the liberal tradition. Nor are we likely to be much reassured by Dworkin's aspiration that behind all the muddle of practical judicial interpretation in the empire of law stand the philosophers, "the seers and prophets" of law. "It falls to philosophers, if they are willing, to work out law's ambitions for itself, the purer form of law within and beyond the law we have" (Law's Empire, 407). They are the ones who weave together the tattered ends of law and reveal it in its pure integrity.

 

So far, of course, they have kept it pretty much to themselves, otherwise we would not have the kind of wrenching conflicts that have forced us to confront our own nakedness. On the other hand, if the philosophers themselves are just as much at a loss, then a nonfoundationalist approach will serve little better than any other. It will merely disguise the nihilism that lies deep within itself but that is brought to the surface in the palpably self-serving character of its justifications. Like the pattern of bioethical professionals on hospital staffs, the cumulative effect will be to allow people a cover for doing pretty much whatever they want to do anyway. At the end of the day, one suspects that the nonfoundational approach is one that really believes in very little. How, otherwise, could one reach the kind of conclusion advocated by Richard Flathman, that the right to an abortion includes the right "to demand an abortion from a medically competent individual who personally believes that abortion is morally wrong?"²¹ If one can be compelled to commit what one regards as murder, then we have entered a realm that is, in Dworkin's chilling phrase, "beyond the law."

 

This even takes some of the jaunt out of that most impish of nonfoundationalists, Richard Rorty. The abyss of liberal coerciveness implied in the readiness to treat liberal principles as an invitation to creative interpretation is wickedly concealed in his playful rhetoric of irony. How can any interpre­tation be challenged if the principles do not really stand for something else? If their only basis is the fact of their historical emergence, what privileged status does any one formulation have over all the alternatives? Who is to say that the rights of one may not be sacrificed for the rights of another? What is the necessity even for maintaining a consistency of principle? Why should we be slaves of conventions historically inherited anyway? Rorty's term, liberal ironist, is intended to describe the kind of individual who can keep these kind of questions under his hat. More and more, however, it begins to sound like the brave whistling in the dark of a man who cannot repress the monsters of unanswered questions.

 

"Putting on a brave face" is a pathetic metaphor for the fate of the liberal tradition. No amount of rhetorical brilliance can disguise the note of pleading in Rorty's efforts to convince us and himself not to take the questions seriously. It is a scintillating piece of bravado that almost succeeds in "joshing" us out of our philosophical earnestness, were it not for the patent contradiction with the sense of solidarity he wishes to put in its place.²² He is convinced, with Foucault, that the quest for truth has been at the source of the cruelty that human beings have inflicted on one another, and so he welcomes the ironist critique that undermines truth itself as a project. Solidarity must now be based, Rorty is convinced, on the feeling of sympathy with the sufferings and needs of others. But why should we give way to this feeling rather than any others, especially in the absence of any good reasons? What indeed will solidarity mean when we do not truly know what it is that is appropriate to all others?²³

 

Rorty recognized the abyss of the centerless self in the example of Heideg­ger, for whom there was no contradiction between writing great books and betraying his colleagues (Contingency, Irony, and Solidarity, 111, n. 11). Or there is Rorty's recognition of Smith in 1984 as a plausible account of the kind of society "in which the intellectuals had accepted the fact that liberal hopes had no chance of realization" (183). But perhaps the most touching passage of all is where Rorty imagines what he would say when the secret police come to torture the innocent. He or we will not be able to say anything. We can only remember Sartre's remark on such an occasion, that then "fascism will be the truth of man." It is, Rorty admits, "a hard saying . . . that there is nothing deep down inside us except what we have put there ourselves, no criterion that we have not created in the course of creating a practice, no standard of rationality that is not an appeal to such a criterion, no rigorous argumentation that is not obedience to our own conventions" (Consequences of Pragmatism, xlii).²⁴ The question is whether there is anything at all that would make Rorty shout "No!"

 

That is the decisive question, for the collapse of the liberal efforts at theoretical self-articulation is of concern only to the extent that it presages a more profound inner collapse of conviction. It is one thing to not be able to justify what one believes, it is quite different if one no longer believes anything. The two are clearly connected and mutually reinforce one another. The whole arduous effort to develop a nonproblematic account of liberal order has been motivated by the concern that the underlying morality may be in danger of draining away. A gnawing anxiety that little of substance may remain lurks behind the urgency to plug the theoretical cracks. This accounts for the sense one often gets from liberal writers that if only they can make it all coherent then our political problems will be solved. Unfortunately, the problems lie deeper.

 

We cannot ignore the contingent relationship between theory and practice. Just as the disassembling of theory does not necessarily lead to the disap­pearance of liberal practice, so the reassembling of theory will not necessarily lead to the restoration of liberal practice. Their relationship is reciprocal and complex. Both must be taken into account if we are to get the full measure of the long liberal crisis that is upon us. We must be willing to confront at the deepest level the possibility contemplated by Nietzsche and Dostoyevsky: that nihilism had become not only the intellectual but also the existential truth of liberalism. What is it that keeps liberal democratic societies together if we cannot philosophically account for it? Or have we reached the point where liberal societies have awoken to their own incoherence and are already headed down the path of disintegration?

 

Many of the most perceptive liberal critics have concluded that the tradition is now bankrupt. "Liberalism as a doctrine implicitly presupposed," observes John Gray, "what contemporary cultural pluralism destroys or diminishes, a single cultural tradition as undergirding the institutions of civil society. Those who welcome cultural diversity (as I do) must be ready to confront the task of maintaining civil society without much help from the resources of the cultural tradition which gave it birth and sustained it to maturity" (Liberalisms, 214). Increasingly, in the view of Gray and many others, we cannot rely on any core liberal conviction to sustain a public order. We are thrown back upon the continuity of social conventions and the enclaves of traditional communities as the only solidities that remain. The universalism of liberalism as an ideology is abandoned, and we acknowledge the extent to which it has been tied to the peculiar historical conditions of its genesis and development. Philosophy is replaced by history.

 

Within such a setting the task of the theorist ceases to be that of searching for new evocative formulations of liberal principles. There are no noncircular justifications of the priority of liberty that do not presuppose the primacy they wish to establish. Nor is there any way of moving from abstract principles of liberty to political practice without presupposing the more concrete ex­periences of liberal politics. But most devastating of all is the vacuum that is revealed by this failure of explanations. There are no liberal convictions that can be articulated because there are no liberal convictions period. All that exist are the liberal practices themselves as a precious historical bequest, and it becomes the task of the theorist to bend all his efforts to the work of sustaining them. The liberal theorist becomes, according to Gray, a "political Pyrrhonist" who works to salvage what can be saved from liberal skepticism.

 

This may include the rendering of plausible accounts of liberal political morality, but it will not extend to "the vain project of constructing a liberal doctrine. Indeed, if his inquiries have a practical aim (and they need not), it will be to protect the historical inheritance of liberal practice from the excesses of an inordinate liberal ideology" (264).

 

There is an admirable modesty in this approach that focuses on repairing the habits and institutions that have constituted liberal politics. A tone of refreshing realism about politics has been sounded in the acknowledgment of the need for restraint, especially in regard to the abstractions that have defined the liberal ideals. It is true that the liberal order has been a victim of its own success and that any more success could destroy it altogether. But for all the laudable respect for historical traditions that we find voiced by writers across the political spectrum today, there is also a sense of weariness and resignation that feels uncomfortably like the last gasp of an exhausted political movement. No longer able to explain itself, liberalism reverts to taking care of the inheritance bequeathed to it by its ancestors.

 

One wonders how well liberalism will be able to take care of what it no longer understands. How long will it be able to sustain an order that does not arise from its own convictions? One cannot simply jettison "the myths of universal humanity and personhood"²⁵ without affecting the concrete institutions and practices that such general notions underpinned. The flight from theory, itself a perennial proclivity of liberals, cannot abolish the ques­tions and conflicts to which theory had sought a response. Disputes about the meaning and application of liberal principles will return, except now they will not find even a partially coherent account to control them. The failure of the liberal philosophical enterprise to date does not mean that no philosophical account of liberal democracy is possible. It means only that the form in which the search was undertaken is unlikely to yield fruitful results. The demonstration of an alternative approach is the principal object of this book. But before we proceed we must first establish that a liberal ethos exists that can be theoretically explicated. We must respond to the deepest challenge that has been mounted against the liberal consensus: that it does not exist. Is nihilism the truth of the liberal soul?    

20. On this background, see Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition. Cambridge: Harvard University Press, 1983; James Stoner, The Common Law and Liberal Theory. Lawrence: University of Kansas Press, 1992.

21. Richard Flathman, Toward a Liberalism. Chicago: University of Chicago Press, 1987, 203. It should be noted that Flathman does retain the possibility of asserting a pacifist defense for noncooperation, although it remains a highly "qualified" avenue of escape from liberal compulsion.

22. Richard Rorty proposes to discourage the raising of philosophical questions about the source of order as a necessity imposed by the irreducible pluralism of contemporary liberal societies.

If one's moral identity consists in being a citizen of a liberal polity, then to encourage light-mindedness will serve one's moral purposes. Moral commitment, after all, does not require taking seriously all the matters that are, for moral reasons, taken seriously by one's fellow citizens. It may require just the opposite. It may require trying to josh them out of the habit of taking those topics so seriously. There may be serious reasons for so joshing them. ("The Priority of Democracy to Philosophy,"In The Virginia Statute for Relgious Freedom, ed. Merrill Peterson and Robert C. Vaughan, 257-82. New York: Cambridge University Press, 1988, 272.)

23. The same incredible sense of an impossible high-wire balancing act could be discerned in Rawls's earlier construction, as Michael Sandel perceptively discerned Discussing the difference principle, Sandel observed that the assumption that all assets are at the disposition of society to redistribute "fairly" undermines the independence of the deontological self it was intended to protect.

Either my prospects are left at the mercy of institutions established for "prior and independent social ends" . . . which may or may not coincide with my own, or I must count myself a member of a community defined in part by those ends, in which case I cease to be unencumbered by constitutive attachments. Either way, the difference principle contradicts the liberating aspiration of the deontological project. We cannot be persons for whom justice is primary and also be persons for whom the difference principle is a principle of justice. (Liberalism and the Limits, 178).

24. Compare this with Albert Camus's meditation on the existential discovery of an order of moral limits in the act of revolt against injustice

What is a rebel? A man who says no, but whose refusal does not imply a renuncia­tion. . . . He means, for example, that "this has been going on too long," "up to this point yes, beyond it no," "you are going too far," or, again, "there is a limit beyond which you shall not go." . . . Rebellion cannot exist without the feeling that, somewhere and somehow, one is right. . . . When he rebels, a man identifies himself with other men and so surpasses himself, and from this point of view human solidarity is metaphysical. (The Rebel. Trans. Anthony Bower. New York: Vintage, 1956,13, 17)

25. Ibid., 236.