It is difficult to think of a time when liberal political thought has been as remote from political practice as it is today. There are many reasons for this situation, including the near-complete rout of liberal forces by the right. But a part of the reason lies in the development of liberal thought itself. Liberal thinkers, in the universities where they have retreated, appear to believe their main task is to specify the basic liberties of individuals and the principles of distribution for other social goods, in the conviction that once these have been identified they can be embodied in law and interpreted by courts. In this now conventional view the principles of justice can be derived from an underlying moral consensus that is embodied in modern democratic societies, and since these will be principles that all reasonable people can accept, there will be no possibility of radical political conflict. No doubt there will still be some need for political activity, but not in order to protect liberal values. Liberal values will not be at risk, since they will be enshrined in law.
The currently dominant version of liberal theory is a species of legalism in which politics takes second place to the judicial interpretation of rights. If this view of liberalism is now commonplace it is largely due to the impact of John Rawls's theory of justice. Rawls revived a version of social contract theory that has shaped the way political philosophy is practiced in the United States, and to a lesser extent in Britain and other European countries. It is a feature of contract theories that they look to agreement on principles of justice to avoid conflict over religious beliefs and moral ideals. There have been many such theories--Locke's account of what justice demands is quite different from that of Hobbes, and Rousseau's is different from both--but that has not diminished the appeal of the idea that government can be seen as embodying some sort of contract. The vision expressed in contract theory is of a society in which the murky compromises of politics are replaced by the rule of law, and people with widely different beliefs and values can live together under a regime of justice that all can accept.
It is a seductive vision, but there has always been something unreal in the view that law can achieve such a feat. People differ as much in their conceptions of justice as they do in their religious beliefs and moral values, and the idea of an overlapping moral consensus, which Rawls's theory invokes, scarcely reflects the condition of contemporary democratic societies. It is true that the language of justice and rights is pervasive, but it conceals vast divergences in moral outlook and world-view. What do gay activists and homophobic fundamentalists, liberal feminists and right-to-life fanatics, Green defenders of the natural environment and those who see the planet as a resource to be used by humans have in common? They may have some shared beliefs or values, but these are hardly sufficient to generate agreement on which human liberties are most important or on how other social goods are to be distributed. The fact is that contemporary democratic societies lack any deep consensus on values, hence the peculiarly fractious quality of contemporary politics in the "liberal" West.
That Rawls's theory has little to say on many of the issues that are currently most politically contested has not prevented his heirs from trying to extend his work to precisely these questions. Martha Nussbaum's most recent book, Frontiers of Justice, is the latest such effort. She aims to widen the reach of Rawlsian theory by addressing questions it has thus far largely neglected, such as the role of distributive justice in international relations, the claims of disabled people and the moral status of nonhuman animals. Nussbaum's resourceful and imaginative exploration of Rawls's work displays a command of the longer tradition of political philosophy that matches and even surpasses that of Rawls, along with a notably richer sensitivity to the history and variety of constitutional arrangements. The result is a notable contribution to philosophical inquiry that merits the most careful study by all who try to think seriously about public policy.
Still, a puzzle remains as to why Nussbaum has chosen to view the issues with which she is concerned through the lens of Rawlsian theory, when she could--perhaps more profitably--have examined them in the light of her own views. As she is fully aware, applying Rawls's theory to these areas is no easy matter. His vision of a scenario in which principles of justice are adopted is an idealized version of rational choice by competent human adults. Since the theory makes no reference to disabled persons, children or nonhuman animals, it is hardly surprising that the principles that emerge from it give no clear guidance as to how they are to be treated. Again, Rawls's theory was constructed to apply within modern states. It was never meant to be a charter for global redistribution. In later work he tried to develop some account of morality in international relations, but he was clear that his conception of justice reflected a moral consensus that exists (so he believed) within nation-states and could be implemented only by nation-states. When Rawls failed to apply his theory to the issues Nussbaum raises, it was not an oversight. It was because the structure of the theory he constructed precluded it from being applied in these ways.
Thus, in order to extend Rawls's account of justice to such issues, Nussbaum has to make major alterations in the theory. One can't help but wonder why she takes the trouble to make these elaborate adjustments, especially as she concedes that many of Rawls's conclusions can be reached through other types of argumentation. Why does she force her deliberations into the Procrustean mold of Rawls's contract theory? The reason may be the canonical prestige of Rawls's theory. Nussbaum's attitude toward Rawls's work is one of piety, and this leads her to accept aspects of his theory that critical reflection might have led her to question. She writes of Rawls's theory that its
principles themselves, or something very like them, are good principles--not only for those cases to which Rawls applies them, but for other cases concerning which he advances no principles at all. Moreover, the ideas of fairness and reciprocity that these principles embody and render concrete are themselves deeply attractive ethical ideas.... It would be good to extend those principles and those ideas to our unsolved problems of justice.