Giving Liberalism its Due

The John M. Olin Programme on Politics, Morality & Citizenship

Published by the Institute of United States Studies, University of London, 2000

GIVING LIBERALISM ITS DUE[1]

by Peter Berkowitz

Critics charge that the liberal spirit is hegemonic. Supporters sense that liberalism is imperilled. To understand why it is worth defending, it is important to see that liberalism is both.

Few politicians today dare to run for high office under liberalism=s banner. In public discourse in the United States Aliberal@ has become a term of abuse that Republicans hurl and Democrats dodge. Despite their conflicting motives, the hurlers and dodgers form an unholy alliance. This unholy alliance conspires to confuse the liberal spirit with, and hold it hostage to, the governing ambitions, policy positions, and political fortunes of the left wing of the Democratic Party. One result is that fewer and fewer know, or are likely to experience the incentive to discover, that liberalism also names a proud tradition of moral and political thought. This tradition arose in the seventeenth century, it has borne many blossoms in many countries, and notwithstanding all its varieties it has consistently championed goods that are as fundamental to the political hopes of majorities on the right today as they are to those on the left: individual liberty, human equality, religious toleration, and systematic intellectual inquiry based on the free exercise of human reason.

Despite contemporary liberalism=s tarnished reputation, the principles for which the liberal tradition has always stood continue to exercise a powerful influence over American hearts and minds: no candidate can hope to succeed on the national stage who denies the fundamental importance of individual freedom or questions the ideal of equality before the law. Moreover, while disputes rage about the scope of freedom and what government may or must do to secure equality for all, even the thorniest controversies between left and right in contemporary American political life take place in large measure within a liberal framework.

The primacy of liberal principles can be seen in the battle over abortion and in the struggle over affirmative action. Proponents of a woman=s right to choose Ato terminate her pregnancy@ appeal to the familiar liberal principle of personal autonomy: the individual woman alone, it is argued, should have the final say when it comes to decisions about her own body and life. But to a considerable extent opponents of abortion also build their case on the liberal ground of respect for the individual; but they place a different individual in the forefront of their considerations. Many who oppose abortion do so not on the basis of government=s obligation to legislate morals or promote the good life but rather couch their opposition in terms of respect for the right to life of the fetus or unborn child.

Similarly, in the struggle over affirmative action, the contending camps often disagree over the interpretation and application of a principle they hold in common. Proponents of affirmative action argue that in a society haunted by the legacy of slavery, racism, and sexism, taking race and sex into account in hiring and promoting is necessary to achieve equality. In reply, critics also invoke the principle of equality, contending that haunting legacy or no, legally mandated preferences based on race or sex violate government=s obligation to provide each citizen the equal protection of the law. One could repeat this exercise with similar result in connection to the debates over the right to suicide, welfare reform, tax policy and other fiercely contested issues on the contemporary agenda. In each case one would find liberal principles decisively shaping both sides of the dispute. Indeed, wherever liberalism has taken root, its fundamental premise of natural freedom and equality has informed not only debates over public policy but the design of political institutions, the development of law, and the beliefs and practices that guide individuals in their private lives.

Although they are inseparably connected in liberal thought, freedom and equality must remain in tension with each other. The protection of individual freedom--even or especially on a level playing field--leads to inequality as individuals, through the exercise of their different capacities and powers, achieve unequal results. And because it requires the imposition of constraints on what individuals may do with their property and themselves, the quest for equality results in a diminution of the freedom to do exactly as one pleases. These familiar tensions notwithstanding, freedom and equality are part and parcel of the same fundamental thought in the liberal tradition. All individuals equally are thought to be by nature free. And each is free because all equally lack the right to rule over any other.

The premise of natural freedom and equality is intimately bound up with metaphysical notions and moral ideas that modern philosophy makes central to the understanding of the human condition. The modern turn toward subjectivity--the notion that the human mind plays an active role in organizing and giving meaning to reality--gives an egalitarian thrust to modern thought by helping to undermine both the classical idea of a natural rank order and biblically based religious visions of a divinely sanctioned hierarchy. Viewing each as essentially free and equal lends luster to the virtue Mill called Aindividuality@--the exercise of a stern self-discipline to fashion a distinctive character out of strong and variegated passion.[2] At the same time, it opens the door to the pathology Tocqueville called Aindividualism@ whereby Aeach man is forever thrown back on himself alone, and there is danger that he may be shut up in the solitude of his own heart.@ [3] And the modern moral idea par excellence, autonomy, the idea that freedom is one and the same for every individual and it consists in obeying only those laws one has prescribed to oneself, presupposes the theoretical primacy of subjectivity and the practical primacy of individuality.

None of this means that liberalism has ever devised conclusive arguments on behalf of its fundamental premise. Indeed, the perceived failure of the tradition to do so has led many contemporary liberal theorists to eschew discussion of first principles, as if one could make troubling theoretical and metaphysical questions vanish simply by refusing to speak about them. In recent years some leading liberals have become so aggressive in their evasions that they have confused the tactic of avoiding complex and contentious arguments in support of their first principles with the extreme insistence that liberalism altogether lacks theoretical foundations.

It is a mistake, however, to define or defend the spirit of liberalism while ignoring its fundamental premise. Belief in the natural freedom and equality of all human beings is not by a long shot all there is to liberalism, but the premise is fundamental because it orients and organizes liberal thinking. It also links the diverse strands that make up the liberal tradition. And it provides a principle for distinguishing liberalism from other traditions of moral and political thought.

Reference to liberalism=s fundamental premise, for example, helps bring out what liberalism shares with democracy, which is devotion to freedom and equality, and what it adds to democracy, which are limitations, in the name of the rights of individuals, on the freedom of majorities. It also explains why Hobbes, who, in Leviathan, establishes the natural freedom and equality of all as one of the bases of the true science of politics,[4] should be seen as a member of the tradition; and why Nietzsche, who, in Beyond Good and Evil, diagnosed the doctrine of human equality as a poisonous conceit and honored freedom as a prerogative of the few,[5] should not. It also helps set liberalism apart from classical political philosophy, which did not affirm that all human beings were by nature free and equal, and the Bible=s affirmation that human beings are indeed fundamentally equal but not by nature or reason but because God made us that way.

Another mistake is to reduce liberalism to its fundamental premise, as if the liberal tradition embodied a monolithic world view and one could, from this premise, draw all pertinent conclusions about its governing style, vitality, and worth. As Judith Shklar pointed out, the liberal tradition is also defined by and should be defended in terms of its Aoverriding aim,@ which, in her words, is Asecur[ing] the political conditions that are necessary for the exercise of personal freedom.@[6] Liberalism=s fundamental premise does not dictate one right path to the attainment of its overriding aim. Indeed, in the effort to devise political institutions and promulgate laws that equally respect the individual freedom of all, the liberal tradition has produced a rich diversity of emphases, approaches, and arrangements.

Seen in the light of both its fundamental premise and its overriding aim, liberalism is a tradition that extends over centuries, cuts across national boundaries, and finds eloquent advocates in parties of the left and the right. It is wide enough to include not only such standard-bearers as Locke, Kant, and Mill, but also thinkers more eclectic and difficult to categorize such as Montesquieu, Madison, and Tocqueville. It is a tradition that has articulated a set of characteristic themes including individual rights, consent, toleration, liberty of thought and discussion, self-interest rightly understood, the separation of the private from the public, and personal autonomy or the primacy of individual choice; has elaborated a characteristic set of political institutions including representative democracy, separation of governmental powers, and an independent judiciary; and, less noticed these days but vital to understanding liberalism=s possibilities and prospects, has provided a fertile source of reflections on such non-political supports of the virtues that sustain liberty as commerce, voluntary association, family, and religion.

Listening to liberalism=s leading critics in the academy, though, one might never guess that liberalism is a complex and many-sided tradition. Communitarian critics reproach liberalism because, they claim, it disassociates citizens, drains the morality out of public life, and degrades politics to the play of selfish interests. Feminist critics rebuke liberalism for tolerating beliefs and practices that have denied women opportunities and perpetuated their status as second-class citizens. And postmodern critics condemn liberalism=s core institutions and key concepts for working to conceal the contingency of established arrangements and thereby deprive individuals of the full range of choices that should be available to them.

There is truth in these charges. However, all this reproaching, rebuking, and condemning seems to have left its leading critics little energy for appreciating liberalism=s solid achievements. These achievements, such as protecting personal rights and securing the equal protection of the laws, are ones that liberalism=s leading critics take for granted and would not, at least for themselves, dream of abandoning. Nor have the critics set aside much time to consider to what extent these solid achievements would be imperilled by the pursuit, without the backdrop of liberal limits and guarantees, of communitarian, feminist, or postmodern goals.

Truth be told, academic liberalism must shoulder a fair portion of the blame for allowing the complexity and many-sidedness of the liberal tradition to fade from view. And the professors must take some responsibility for disarming liberalism in the face of aggressive assaults on its good name. Although recent years have seen the emergence of a new generation of scholars devoted to recovering neglected dimensions of the classic liberal tradition, on the whole academic liberalism has concentrated its energies on the articulation of a narrowly procedural liberalism. The liberalism that dominates in the academy is one that is primarily concerned with articulating technical principles and applying them to contemporary moral dilemmas but which takes little account of the unruliness of human passion, the practical force of higher aspirations, the non-political requirements of politics in a liberal state, and the impact of the laws on the character of those who live under them.

It would be wrong to trace the narrowness of contemporary liberal theory to the fact that liberals have sought to sustain themselves at the universities through a steady diet of Locke, Kant, and Mill and, at best, have served themselves rather stingy portions of Montesquieu, Madison, and Tocqueville. More telling is the stingy portions of Locke, Kant, and Mill with which academic liberals have contented themselves. In the universities, liberals continue to do their own tradition an injustice by uncritically conforming to the custom of studying only the Locke who teaches about the principles of legitimate government in the Second Treatise but not the Locke who, in Some Thoughts Concerning Education, examines the virtues that support liberty; of attending almost entirely to the Kant who expounds the principle of autonomy in the Groundwork while neglecting the Kant who articulates the virtues of moral character in the Metaphysics of Morals; of focusing exclusively on the Mill who, in the first three Chapters of On Liberty, celebrates individual choice and the need for new experiments in living, while leaving out of focus the Mill in Chapters 4 and 5 of On Liberty who recognizes society=s interest in cultivating the Asocial virtues,@ and stresses the role of the state, the family, and voluntary associations in fostering the virtues of freedom. How can one blame liberalism=s critics for attacking a desiccated vision of liberalism when contemporary liberals themselves have done so much to read out of the record the complexity and many-sidedness of their own legacy?

Greater self-knowledge is today one of the keys to repairing the liberal spirit and restoring its luster. In coming to know itself more fully, liberalism also will attain a better grasp of both the progeny it has produced and the criticisms it has provoked. And it may well come to see that its leading critics are in fact none other than its own fickle and rebellious children.

The lineage of liberalism=s leading critics can be brought into focus by considering the goods which they criticize liberalism for damaging. On examination, the search for a usable communitarian political theory can, in many cases, be seen to be motivated at bottom by the conviction that respect for the dignity of the individual requires more attention than contemporary liberalism has been inclined to pay to associational life, civic virtue, and active participation in democratic self-government. To a considerable extent, feminist criticism seeks to illuminate the ways in which liberalism has not only failed to deliver equality for women but maintained barriers to its delivery. And postmodernism, in its more sober moments, has won genuine insights into the subterranean exercises of power by which the norms and terms of debate in liberal society silently restrict individuals= freedom of thought and choice. Yet what are individual dignity, equality, and freedom but central planks of the liberal platform?

What I want to suggest is that communitarianism, feminism, and postmodernism, even when they explicitly define themselves in opposition to liberalism, continue to derive much of their appeal from the manner in which they develop or extend liberalism=s fundamental premise, the natural freedom and equality of all, and are driven by liberalism=s governing moral impulse, defense of the dignity of the individual. At the same time, outstanding defects in the approaches to politics of liberalism=s leading critics can be traced to their disregard of crucial lessons taught by the liberal tradition--and in many cases forgotten or poorly articulated by contemporary liberals. These lessons concern the beliefs, practices, and institutions that protect--and limit--individual freedom, and secure--and define the scope of--equality before the law. In short, many of liberalism=s progeny have denounced or denied their parents and scorned their patrimony, but then continued to live off--and run down--the family legacy.

This is an old story and a serious problem, though by no means unique to liberalism. According to Socrates= account in Book VIII of Plato=s Republic, all regimes contain the seeds of their own destruction. Typically, the cause of destruction is the one-sided or defective education fathers provide their sons. Oligarchic fathers--narrow, disciplined, and devoted to the making and preserving of wealth--raise spoiled sons whose love of luxury and hatred of authority brings about change from oligarchy, the regime in which the wealthy few rule, into democracy, the regime in which all citizens rule and each is free to do just as he pleases. By teaching their sons to listen only to their own most immediate desires, democratic fathers prepare them for nothing so much as quiet submission to a ruthless tyrant. And something similar, I wish to suggest, has occurred in connection to the liberal spirit. By so successfully teaching respect for the dignity of the individual, equality before the law, and freedom from external, arbitrary authority, liberalism has raised a generation of critics who specialize in identifying the ways in which liberalism itself denies the dignity of the individual, sanctions inequalities, and deprives individuals of choice. Those inclined to dismiss out of hand the dialectic by which parents instill in their children qualities that threaten their way of life should consider that the angry and rebellious children of the 1960s were raised and educated by the middle class, solidly bourgeois parents of the 1950s.

Several reasons justify the effort to give liberalism its due. First, liberalism clarifies the contemporary intellectual scene by providing a framework which reveals that what appear to be rival and incompatible schools of thought in fact share a formal structure and governing moral intention. Second, giving liberalism its due means a substantial gain in self-knowledge, both for those who think of themselves as liberals and for those who do not recognize the liberalism of their ways. Third, the liberal tradition has untapped resources for understanding more precisely how to defend, and sustain a political life that rests upon, the premise of natural freedom and equality, a premise whose power not many would wish to deny and whose authority few can honestly resist.

II.

In 1982 Michael Sandel published Liberalism and the Limits of Justice, a concise, analytically sophisticated, and timely critique of John Rawls=s seminal restatement of liberal principles in A Theory of Justice (1971).[7] Although not always apparent, Sandel=s primary concern was not to reject Rawls=s principles. Rather, Sandel sought to show that the manner in which Rawls argued for his principles--the primacy of individual liberty and the need for the state to secure the social and economic bases of equality--depreciated important moral and political goods, especially the goods of political participation and community.

Sandel especially objected to Rawls=s view that in protecting liberty and securing equality the state should remain neutral on the question of the good life. The ideal of neutrality, Sandel argued, was both impossible and unwise. It was impossible because state action always implicated some conception of how human beings should live their lives. And neutrality was unwise because it rested upon and promoted a defective conception of the human being.

The fundamental problem, according to Sandel, was that Rawls=s liberalism was rooted in an abstract conception of the self that could stand apart from and freely choose its ends. Sandel argued this conception of an Aunencumbered self@ obscured the moral and political significance of our practical attachments, and suppressed the importance of the dimensions of our identities that we do not choose, the duties of Aencumbered selves@ that are given to us by the families, nations, and religions into which we are born.

The critique of Rawls that Sandel did so much to advance came to be known as the communitarian critique of liberalism. It drew support from influential scholarly writings in history, philosophy, and political theory. In the late 60s and 70s many scholars began to take issue with the dominant image of the United States as founded on liberal principles and organized around a politics based on self-interest and the protection of individual rights. Leading historians such as Bernard Bailyn and Gordon Wood published important works arguing that the ideas that shaped the American Founding hailed from the tradition of what Sandel would subsequently call republican theory, a tradition of political thought that defined liberty in terms of participating in a self-governing community and which equated virtue with devotion to the public good.[8]

Meanwhile, the political theorist Michael Walzer achieved prominence through his critique of rights based liberalism in the name of political theory that proclaimed the dependence of the moral life on what is local, situated, and shared.[9] Charles Taylor, a distinguished scholar of the history of philosophy, developed an interpretation of Hegel=s political theory that stressed Hegel=s Aristotelian assumption that human beings are by nature not isolated individuals but social and political animals. Through his study of Hegel as well as his writings on the limits of analytic moral philosophy and positivist social science, Taylor sought to make available to Anglo-American scholars an appreciation of the linguistic, cultural, and religious communities that constitute human identity and whose political significance, he claimed, has been ignored or misunderstood by mainstream liberal theorists.[10] And through her rather free reinterpretations of the thought of Aristotle and the American Revolutionaries, the political theorist Hannah Arendt also lent support to the communitarian critique of liberalism. Arendt argued that although it has been all but destroyed by liberal modernity, the Apublic realm@ is Athe proper place for human excellence@ because human beings were essentially storytelling animals whose greatest acts consisted in speeches staged before an engaged and politically self-conscious public.[11]

Although the combined influence of these several sources on the communitarian critique has rarely been subject to examination, their influence has helped to obscure the extent to which the communitarian critique of liberalism, certainly in Sandel=s hands, never really wished to call into question liberalism=s fundamental premise--the natural freedom and equality of all. Indeed, Sandel=s communitarian critique, which over the years has ripened into a republican alternative to liberalism, has always depended for its considerable appeal on the ways in which it sought to defend the dignity of the individual from contemporary liberalism=s excesses and oversights.

The commitment to defending the dignity of the individual is both central to and obscured by the argument of Sandel=s new book, Democracy=s Discontent. Sandel holds that beginning with the New Deal and gaining steam with the Warren and Burger Courts, the procedural liberalism that received its seminal philosophical formulation in the writings of Rawls has also come to dominate American constitutional law and public policy. Sandel blames this liberalism for diminishing the opportunities for self-government and for eroding community. However, by and large (although his rhetoric often obscures this), Sandel has little to say against American liberalism=s hallmark achievements in this century: the expansion of individual liberty, the extension of the equal protection of the law to cover women, blacks, and other minorities, and the provision of a social safety net to insure a minimum quality of life for all citizens. Rather--when he is not arguing for the extension of these achievements into areas not yet reached and showing how to include individuals who do not yet enjoy their benefits--his main complaint is that American liberalism has lost sight of an older view of liberty, a view of liberty whose recovery, Sandel believes, is essential to reinvigorating democracy in America.

According to this older view, which Sandel calls republican and which he argues has deep roots in the American political tradition, liberty Adepends on sharing in self-government@ and self-government means Adeliberating with fellow citizens about the common good and helping to shape the destiny of the political community.@[12] In contrast to the liberal tendency to remove questions about first principles and the greatest good from public discussion, Sandel seeks a political discourse that will Aengage rather than avoid the moral and religious convictions that people bring to the public realm.@[13] And in contrast to the liberal disposition to keep government out of the business of caring for souls, Sandel envisages a Aformative project@ by means of which government cultivates in citizens the civic virtues on which democratic self-government depends.[14]

The counsel to encourage citizens to debate openly and in public the religious convictions that divide them and the exhortation to involve government directly and deeply in the care for citizens= souls must be greeted, from a liberal perspective, with keen suspicion. What liberals will fear is the threat to individual dignity that comes from inviting the state to take sides on hard questions about the good life and to use its massive and unwieldy powers for the delicate task of promoting virtue. But the suspicion and fear aroused by his political project should not be allowed to obscure the familiar moral impulse that drives Sandel=s republican vision. For on inspection Sandel does not seeks a public philosophy that secures the good of some group or community but rather a good that liberals cherish, a certain dignity of the individual that attaches to each citizen, whatever group or community to which he or she may happen to belong.

The liberal impulse that inspires Sandel=s republican political theory can be seen in his critique of the reasoning that underlies recent Supreme Court decisions on religious liberty. Sandel=s worry is that in the end the liberal approach to religious liberty, which requires that Agovernment should be neutral toward religion in order to respect persons as free and independent selves,@ only respects religious beliefs insofar as they can be seen as Athe product of free and voluntary choice by the faithful.@[15] And this reductionist view of religion, Sandel believes, has baleful consequences for religious believers, for when liberalism Aprotect[s] religion as a life-style, as one among the values that an independent self may have, [it] may miss the role that religion plays in the lives of those for whom the observance of religious duties is a constitutive end, essential to their good and indispensable to their identity.@[16]

Attention to his language helps reveal the moral consideration that animates Sandel=s critique of the liberal approach: ATreating persons as >self-originating sources of valid claims,=@ Sandel writes, Amay...fail to respect persons bound by duties derived from sources other than themselves@ [emphasis added].[17] In other words, Sandel wants the Supreme Court to adopt a form of reasoning about religious liberty that is not less but actually more neutral than the standard liberal approach. Sandel seeks a theoretical perspective that not only respects persons whose beliefs are freely chosen but also respects persons whose religious beliefs are experienced by them as given and fixed. In fact Sandel demonstrates little interest in the actual truth or falsity, wisdom or foolishness, utility or harmfulness of religious belief. His approach no more displays an inherent respect for religion than does the contemporary liberalism he condemns for failing to take religion=s intrinsic claims seriously. The changes that Sandel seeks in public law do not in reality grant special or heightened protection to religion so much as they fulfill a liberal promise by showing the same solicitude to the beliefs of individuals who happen to be religious as is shown by current law to the beliefs of individuals who are not.

A similar logic is at work in his discussions of freedom of speech, privacy rights, family law, and what Sandel calls Athe political economy of citizenship.@ Sandel displays a subtle appreciation of the limits of liberal solutions based on individual rights, government neutrality among conceptions of the good, and respect for the autonomous or unencumbered self. But the reasoning that underlies his criticism of these solutions is itself rooted in the ambition to respect even better than liberalism the dignity of the individual.

A better way of thinking about freedom of speech, in his view, would be one which Arespect[s] persons as members of the particular communities to which they belong@ and gives constitutional weight to Athe good of respect for persons as situated selves.@[18] A superior understanding of privacy rights would accord Aa fuller respect@ to the individuals whose private and intimate practices it protects.[19] The trouble with contemporary divorce law is that the conception of the self that informs it is disadvantageous to many women: Aby treating all persons as bearers of a self independent of its roles, the new law fails to respect mothers and homemakers of traditional marriages whose identity is constituted by their roles, who have lived their lives as situated selves.@[20] And similarly, when it comes to the political economy of citizenship, the dignity of individuals is Sandel=s governing concern. So debates about economic policy, he insists, must go beyond questions of prosperity and fairness that preoccupy liberalism and judge the ability of economic arrangements on the basis of their ability to Acultivate the qualities of character that self-government requires,@[21] and this was accomplished through the promotion of Aeconomic independence,@ which consists in the opportunity to Aown productive property and to work for oneself.@[22] For Sandel, when push comes to shove, and rhetoric to the contrary notwithstanding, the individual comes first.

When individuals are respected by public law, as Sandel envisages, and when virtuous, independent citizens come together in the public realm to practice self-government, as Sandel hopes they will, what exactly will they do? What ends will they pursue and what ideals will they seek to actualize? What little Sandel does have to say in response to these questions reveals his republican theory to be no less abstract and formal than the liberalism he reproaches for its abstractness and formalism.

Sandel contemplates a new politics that secures a Ahigher pluralism@ and which is organized to respect the lives of Amultiply-encumbered selves@ who are Astorytelling beings.@[23] Yet what is this Ahigher pluralism of persons and communities who appreciate and affirm the distinctive goods their different lives express@?[24] Is it not a summons to radicalize liberal neutrality? After all, liberal neutrality is the requirement of equal respect regardless of an individual=s actions or achievements. But Sandel=s Ahigher pluralism@ demands that we esteem each other for our specific beliefs and practices regardless of their content or correctness. Whereas liberal toleration requires that we tolerate many beliefs and practices that we dislike, Sandel=s Ahigher pluralism@ asks us to esteem, absent the guidance of principle, most everything. But in refusing to make distinctions, in requiring citizens to affirm distinctive goods without distinctions, this higher pluralism issues in the very relativism that Sandel accused liberalism of secretly sanctioning.

And what are these Amultiply-encumbered selves@ who learn to appreciate Athe sometimes overlapping, sometimes conflicting obligations that claims us, and to live with the tension to which multiple loyalties give rise,@ if not selves that can step back from, evaluate, and, through the stories they construct, rank and reorganize their ends and duties as they choose.[25] As such are they not more like the unencumbered self that Sandel finds an inadequate basis for justice than the encumbered selves whose duties are given and not freely chosen and whom he purports to wish to save from liberalism=s non-neutral neutrality? Sandel=s republicanism appears to culminate in a dubious and disguised radicalization of the liberal autonomy he set out to overcome.

Sandel=s criticism of liberalism in light of republican theory suffers from a grave imbalance. In dealing with liberalism he dwells on its vices and failings. But when it comes to republicanism he is mainly concerned with its advantages and virtues. The vices and failings inhering in his republican vision scarcely register on Sandel=s radar screen. But they are confronted head-on by the liberal tradition. And they deserve to be taken seriously.

Although aware of the importance of voluntary association, the liberal tradition also grapples with the evils of association, the threats to the dignity of the individual faced by men and women situated in suffocating communities whose given roles stultify human capacities and whose internal goods are not worth respecting. Although it knows that politics depends on virtue, the liberal tradition (following Aristotle in this crucial regard) distinguishes, as Sandel does not, between kinds of virtue. In contrast to Sandel=s republican vision which reduces virtue to civic virtue or political participation, the liberal tradition distinguishes between Asocial virtues@ which are crucial to the cooperation for mutual advantage on which society depends, Amoral virtues@ which are exercised in respecting the humanity in others, and not least, the virtues of human excellence, which, the liberal tradition teaches, do not usually achieve full flower in political life. Wary, as Sandel seems not to be, of using the government to cultivate virtue of any kind, the liberal tradition generally thought that the public good depended on private virtue learned not in political life but at work, in voluntary associations, in the family, and through organized religious life. And although it recognizes conflicts between liberty and democracy, the liberal tradition suggests what Sandel fails to consider: liberalism is not the primary source of democracy=s discontent and republicanism cannot be the chief remedy because the spirit of democracy itself is in part responsible for engendering the discontents from which democracies suffer.

To understand what is ultimately at stake in the choice between republican theory and liberalism, Sandel calls attention to the great debate about slavery between Stephen Douglas and Abraham Lincoln.[26] Sandel is right about the relevance of the Lincoln-Douglas debates, but he learns exactly the wrong lesson from them. Perversely, Sandel sees Douglas, who wanted the question of slavery to be decided locally by the people of each state for themselves, as the precursor of the contemporary liberal who wishes to bracket moral questions and withdraw them from public debate. And Sandel compounds the perversity by presenting Lincoln, who contended that slavery violated the fundamental moral principle to which the nation was dedicated--that all men are created equal--as exemplifying the republican approach.

Lincoln, however, is a hero of the liberal spirit precisely because he rejected the idea of putting the question of the extension of slavery into the new territories up to majority vote. And Douglas reveals the true logic of republican theory in his insistence that the awful question of slavery, like all political questions, was properly decided not by some abstract national entity or universal moral principle but through democratic debate, at the local level, by real communities each of which would consult its own deeply-felt moral convictions. Lincoln recurred to liberalism=s fundamental premise to make clear that the moral principle of human equality must not be subject to public negotiation or debate. And Douglas sought to take slavery off the national agenda not to remove it from political debate but the better to have it debated directly by the communities constituted by the people of each state.

Reflection on the fundamental difference of opinion between Lincoln and Douglas renews appreciation of the virtue of liberalism=s refusal to put all principles up for democratic deliberation and illuminates the disadvantages that attend the republican propensity to sacrifice justice on the altar of an engaged public discourse.

III.

If any principle unites the varieties of feminism that have arisen in the last thirty years, it is the principle of equality. When in 1983 Betty Friedan wrote in the twentieth anniversary edition of The Feminine Mystique that Aa male model of equality@ was no longer good enough for women, that what was needed was Aa model of equality encompassing female experience,@ she was not casting doubt on the moral force of the principle of equality.[27] Rather she was insisting that the factors that conspired to confine women to second-class status often escaped the attention of men and were in need of being brought to light by women examining the intricacies of their own experience. Equality even remains central when feminism is conceived of as a fight for autonomy or as a struggle for power. For feminists tend to understand autonomy and power as goods, good for all human beings, of which they have been unfairly deprived by discriminatory laws, antiquated customs, and benighted beliefs.

At the same time, if any excess unites feminism, it is the tendency to call on the government to guarantee increasingly comprehensive forms of equality between the sexes in private life without regard to the threats that such state supervision poses to freedom or the dignity of the individual. And this holds whether one considers the more moderate feminism exemplified in the writings of political theorist Susan Moller Okin or the radical feminism of activist and law professor Catharine MacKinnon.

In Justice, Gender, and the Family, Okin finds that the family as presently constituted unjustly disadvantages women; and she proposes reforms that, she argues, flow from liberal principles of justice. One of her striking public policy recommendations is that in the case of married employees with children, government should require employers to pay half of the employee=s wages to the employee and half directly to the employee=s spouse.[28] Okin believes that such a measure has many benefits: it would enhance the security and independence of married women who take primary responsibility for child rearing and domestic work; it would put such woman on an equal footing in the family by eliminating the power that flows to men from control over financial resources; it would give public recognition to the importance of the unpaid labor involved in caring for children and maintaining the home; and in the event of divorce it would provide women who have stayed at home and foregone professional development some financial independence and stability.

Justice for women is of course a properly liberal concern. And it needs to be appreciated that the liberal tradition has never seen private life as absolutely independent of public law. But it is also true that the liberal tradition has articulated reasons to fear the use of state power in private life and limit government=s reach.

One such fear concerns the vices encouraged by dependence on state power. Okin=s measures, for example, may well exacerbate tendencies to the extreme already at work in contemporary political life. After all, by design the liberal commitment to autonomy weakens the claims of inherited authorities, and liberal preoccupation with rights and self-development contributes to the felt experience of individuals today of separation and remoteness from one another. Okin=s measure plays into these tendencies. At a time when parental authority is challenged from many sides, Okin=s proposal, by entrusting government with the supervision of family financial affairs, further undermines the authority of the family to manage its own affairs. And at a time when husbands and wives already are inclined to view marriage as a business relationship made by parties whose interests have temporarily coincided, Okin=s policy encourages spouses to think of themselves as radically separate individuals whose lives have momentarily intersected.

Justice in the family is a compelling issue. But all remedies are not created equal. The liberal concern for equality must always be balanced against the liberal scruple about intrusive government infantilizing individuals by trying to micro manage their private and intimate affairs. In considering the real vulnerability of married women today, a properly liberal perspective, one that takes seriously the demand for equality and the dangers of intrusive government would, other things being equal, favor measures such as more generous divorce settlements and stricter enforcement of alimony payments and child support because they can vindicate the claims of justice while posing less of a threat to virtues on which a liberal state depends.

Despite her fierce denunciations of liberalism and its principles (for sustaining Aa reign of sexual terror and abasement and silence and misrepresentation continuing to the present day@), Catharine MacKinnon also makes equality for women her fundamental goal. Indeed MacKinnon begins her major work, Toward a Feminist Theory of the State, with the remarkable acknowledgment in a parenthetical statement that while her book is Anot a moral tract@ and Adoes not advance an ideal,@ for the purposes of her argument Asex equality is taken, at least nominally, as an agreed-upon social ideal.@[29] That there is a connection between the liberalism she reviles and the pervasiveness of sex equality as a social ideal in America, an ideal she is pleased to take for granted, does not occur to MacKinnon.

MacKinnon=s extremism obscures the extent to which her theory aims in effect to advance the liberal principle of equality for all by securing equality for a group that, in her view, has been from time immemorial denied it. Although she preposterously insinuates that under present conditions there is little meaningful difference between sex and rape,[30] MacKinnon does bring to light how law and social relations can work against rape victims and for rapists. Although she recklessly denounces the right to privacy conferred by Roe v. Wade because it Areaffirms and reinforces what the feminist critique of sexuality criticizes: the public/private split for the lives of women,@[31] MacKinnon rightly contends that the private sphere can be the site of women=s humiliation and degradation. And although she makes many loose statements and unsubstantiated claims about the connection between pornography and violence against women, it is reasonable to worry that the hard-core pornography casually peddled at corner newsstands and neighborhood convenience stores weakens the claims of equality by fostering the opinion that women=s purpose in life is to provide sexual pleasure for men. What is crucial to notice is that MacKinnon criticizes the law of rape, the right to privacy, and the First Amendment protection of pornography for depriving a particular class of individuals of the equality and dignity that she seems to believe is their=s by right.

No doubt much remains to be done within a liberal framework to assure all citizens, including women, the equal protection of the laws. MacKinnon, however, has little time or patience for the reasons adduced by the liberal tradition for imposing restraints on the use of government to insure equality in all spheres of life. Yet these reasons are compelling.

One reason for restraint, the liberal tradition teaches, is that while we are equal before the law, we remain unequal in important respects, and so far from seeking to make us equal in absolutely every way, it should be part of the task of just laws to respect our differences, which include varying capacities, gifts, and ideas about how to live a good life. A second reason stems from doubt about the ability of clumsy state officials and cumbersome governmental apparatus to first identify and then mold the right opinions.

Such considerations can certainly serve as an apology for complacency. But ignoring liberalism=s reasons for restraint is an invitation to mischief making and malfeasance on a grand scale.

MacKinnon is correct when she writes that AWhen the law of privacy restricts intrusions into intimacy, it bars changes in control over that intimacy through law.@[32] It is wrong of her, however, to refuse to consider that there are nevertheless good reasons for keeping the state, as much as possible, out of intimate relations.

IV.