Toward a Fictionless Liberalism *

1. Introduction

Every new Cambridge Companion raises great expectations: its auspices offer top credentials; the present addition to the series has an exciting and interesting concern—theoretically, practically, and historically, embracing ethics and every social science; it comprises 18 contributions from established authorities; and it is somewhat above the usual standard of competence. Yet the result is disappointing. My chief complaint is that the concern of The Cambridge Companion to Liberalism is not liberalism but the justification of liberalism. The justification offered is a fictitious contract between fictitious model citizens. As justification, the traditional theory of the contract either fully justifies a regime as liberal or it fully condemns it as illiberal. This conflicts with the common recognition that liberalism is a matter of degree. Within the bounds that the editor has chosen, Rawls appears as the leading light of this justification project. In the detail of its discussion, however, Rawls’ work emerges as liberal in intent but as hopelessly confusing.

“Liberalism resists easy description,” writes Steven Wall, the editor of this Companion, as “liberalism is a label that attaches both to a history of a fairly diverse set of political movements, and to ideas and arguments associated with those movements, and to an ongoing research program” (1). “The historical periods and topics discussed here reflect the predilections and interests of the editor” in the “hope to convey the diversity and vitality of liberalism, but also bring into view some of its blind spots” (2). Regrettably, those interested in the blind spots of liberalism have to wait for the last paper of this Companion, by John Skorupski—on liberalism and conservatism—that is probably by far the best of the collection.

The editor depicts liberalism in general as the fight against tyranny and for individual freedom: “liberals champion the cause of freedom” (2). This depiction is much too wide: even the notorious Islamic State of Iraq and ash-Sham (ISIS) aspires to defend some freedom—the freedom to practice an antiliberal version of Islamic law; antiliberal commentators are known to praise some freedom or another as Hegel did. He said, “The individual . . . finds his liberation in duty” (408). Wall’s depiction is also too narrow, because most living liberals today take their liberalism for granted; they champion nothing and fight for less. It is better to characterize liberalism by reference to the questions that engage liberal theorists. The editor’s choice is this: “How exactly might freedom of the individual and the progress of the species go together in the mind of the liberal?” (4) The prevalence of deviations from liberalism vexes him: “would this show a defect in liberalism or merely in liberal practices?” (8) This is odd: consider the fact that although “there is not a just man upon earth that does good and sins not” (Ecclesiastes 7:20), obviously we are not all sinners. Wall’s question suggests that contributors to his Companion deem liberalism utopian. Not so: they discuss real liberal states idealized—both in the moral sense and in the scientific sense in which Galileo’s description of the courses of falling bodies is idealized by ignoring friction, so that his description fits fairly well the fall of sticks and stones but not the fall of feathers and parachutes. How far then may a liberal society deviate from the liberal ideal and still count as liberal? For example, was the United States liberal prior to the Civil War (chapter 1)? The editor leaves this question open (6), as it is wiser “to distinguish between institutions and practices that are not integral to liberalism, but were appropriate for a given time and place, and those institutions that have a stronger claim to be part and parcel of the liberal ideal” (9). This makes him opt for a fictitious image of a liberal society to serve as the criterion to determine who is a liberal.

2. Rawls, the Supreme Liberal

Two options stand out from the others, the liberalism of Robert Nozick and of John Rawls. (This Companion names other authorities too: James Buchanan, David Estlund, David Gauthier, Will Kymlicka, Charles Larmor, Susan Okin, Joseph Raz, Thomas Scanlon, Yael Tamir, and Charles Taylor; none reaches the short list.) Nozick is disqualified as he “did not provide a moral basis for the rights he assumes” (10). So Rawls remains unrivaled (11): he is the “most famous contemporary social contract liberal” and his “approach straddles the divide between contractarianism and contractualism,” namely, the two current versions of the theory of the social contract, the utilitarian and the Kantian. This is a strange way for this Companion to declare that it limits the study of liberalism to its contemporary contractual versions. As a reviewer, I now face a clear task: to explain the way Rawls managed to unify the two versions of the theory, and the way this grants his liberalism “a moral basis.” As a whole Cambridge Companion (Freeman 2003) is dedicated to this very task, perhaps it is slightly excessive for a reviewer. Indeed, already the present Companion shows how complicated this is: Rawls changed his mind repeatedly and tagged on new ideas to his original corpus. It is thus advisable to decide first, what his final justification of his final view is. The Rawls Companion says, the “justification for a liberal political conception” that Rawls offers is his “overlapping consensus theory.” This theory says, people agree to behave well for a variety of reasons (Freeman 2003, 37). The present Companion contrasts this doctrine of Rawls with other doctrines of his (113). Such a contrast is no small matter, because this theory (Rawls 1993) came to replace Rawls’ initial justification of his celebrated theory of justice as fairness (Rawls 1971), no less (127, 129). Yet Rawls found no cause for despair because, we are assured, in his view “a political arrangement can be worked out which creates an ‘overlapping consensus’ around fundamental principles of fairness and justice” (371-72). That is to say, hopefully, a “moral basis for the rights he assumes” will be found one day. Finally, in the last and most readable paper in this Companion, on the conservative critique of liberalism, John Skorupski says cautiously, “insofar as Rawls defends his account of justice on the ground that it makes explicit the overlapping consensus to be found in conservatives” (405). Skorupski qualifies this cautious statement in a note: “However, some question how much justificatory weight he places on that defense.” On this, the jury is still out.

In another part of this Companion we read, “Basing agreement on moral rather than prudential reasoning and motivations represents a distinct form of contractarianism: what Scanlon describes as contractualism” (97, 109). Ergo, contractualism is a version of contractarianism so that the difference between the contemporary utilitarian and Kantian versions of the contract theory vanishes. The editor is then in error saying that the merit of Rawls is that he unified them. It is all the same to me, but I do wish to get clear about Rawls’ success in uniting these two versions so as to achieve the required “moral basis.”

Rawls is exempt from providing “a moral base” for the idea of natural rights, as he rejects it: the cosigners of the social contract have no rights, he avers, natural or artificial, because the contract precedes all rights. If so, then, as the Talmud notes (Bavli, Gittin, 77b), no one has the right to sign the rights-generating contract. Rawls has attempted to overcome this tricky paradox with the aid of the “constitutional convention” and the “legislative stage” (208, note 21). Alas, these items, whatever they are, require “a moral base,” one that should permit posing some disputes about them and resolving them, we learn (118, 120-22). It is not too easy to see how utilitarians allow for moral disputes, nor how Kantians can resolve them. (This is why neither moral theory is serious to begin with.) We find in this Companion a few relevant claims: the moral base of liberalism is not clear (23); we look for a “contractualist justification of moral and political principles” (88); the “shared reason strategy” of Rawls (roughly, his demand to reach moral and political consensus) is implausible (130); in his view “the moral powers connected to autonomy ground the higher order interests citizens have in pursuing reasonable comprehensive goods within the bounds of justice.” Of course he is right: autonomy does have top priority. It needs no moral base, we are told, since it prescribes morality. This is admission that it has no more moral base than Nozick. And so Nozick may reapply for candidature for leadership and perhaps end up sharing leadership with Rawls.

The help that Nozick may proffer is vital, to prevent the principle from justifying governments’ abuse of power. Indeed, Rawls adds to his contractualism yet another theory—the theory of public reason—that limits his justification of government to proper liberal regimes, so that he reduces the difference between himself and Nozick (Gaus 2007). Obviously, a disagreement over the requirement for agreement is somewhat embarrassing. But prior to agreement about it, the theory of public reason needs a clear statement. Alas, the more Rawls elaborated on it, the more unclear and questionable it became. His last contribution to it is posthumous (Rawls 1997); a huge literature rests on this paper; its verdict is that he did not complete his self-appointed task of clarifying his theory. Roughly it says, “Public reason requires that the moral or political rules that regulate our common life be, in some sense, justifiable or acceptable to all those persons over whom the rules purport to have authority” to quote the Stanford Encyclopedia of Philosophy’s inaccurate report. Its inaccuracy is in its oversight of the cardinal demand of Rawls that the public reasons comprise arguments purporting to show that a rule to be justified is in the interest of the society as a whole in addition to the interest of the majority. This raises many questions, including the question of how can the theory of Rawls avoid conflict with Kenneth Arrow’s famous impossibility theorem. (The theorem says, you cannot please everybody and the public too.) Rawls has to assume, for example, the existence of some “fundamental preferences” (Hammond 1976, 800). It is difficult to take seriously the use of the works of Rawls as a successful justification of liberalism and thus as supremely authoritative before they are clarified, not to say revamped. And so we may conclude that using Rawls’ work to unify this Companion is not too promising.

N. B. It has not escaped my notice that the chief contribution of Rawls is a theory of justice, of which nothing was said thus far. For, this review concerns not Rawls but The Cambridge Companion to Liberalism.

3. What Is Liberalism?

Liberalism began as a plain proposal. Niccolò Machiavelli wanted to revive the glory of Rome, as fits a Renaissance intellectual. To that end, he assumed, he needed a strong ruler. He wrote a book, The Prince (Machiavelli 1513), expressly to teach some go-getter how to gain power by any means, fair or foul. He ended the book by explaining that foul means suit only getting power, not wielding it: for controlling the population, their love is a better tool than their fear. This needed elaboration. He offered that too (Machiavelli 1531). This Companion disregards all this. Liberalism, it says (page i), was “first formulated during the Enlightenment in response to the growth of the modern nation-state and its authority and power over the individuals living within its boundaries.” This way Machiavelli is dismissed: tacitly. His idea appears casually: “if the populace be made the guardians of liberty, it is reasonable to suppose that they will take more care of it”; which is dismissed as an “oracular remark” (386). It was sufficient to make Leo Strauss declare Machiavelli the father of modern political philosophy (McShea 1963). H. G. Wells (1922) viewed Machiavelli as the father of the nation-state—owing to his proposal to replace mercenary armies with national militias the Swiss way as these have greater interest in the defense of their country (752-53, 1024; notice that this book is not Machiavellian, no matter what his other books are: 792, 1004, 1011, 1027-28). The consistent liberalism of the nationalist movement, John Stuart Mill and Ernest Gellner have observed (O’Leary 1994, 96, 102, 107), is no accident. Here Paul Kelly notices this in his chapter on liberalism and nationalism (338), yet he sides with Rawls, because, he says, the version of the social contract that Rawls has offered renders his (Rawls’) cosmopolitanism “not unrealistic” (330). Kelly offers no explanation of this. John Skorupski says that Rawls’ “political liberalism” is troubling to the “philosophical liberal” (406).

Liberalism often appears with the slogan “laissez faire et laissez passer” (48). It appears here in a chapter on liberalism in commercial societies, as initially it amounted to advocacy of free trade. It came to designate the no less important freedom of migration that is nowadays severely limited and highly problematic (215). A milder version of it is “live and let live” that is an expression of tolerance rather than of liberalism (284), of which it is a part (143, 159n3, 190, 205). Traditional commercial societies are usually tolerant but seldom liberal. Toleration rooted in custom is politically ineffective; it needs liberal laws to reinforce it.

Now in all of its versions and variants, liberalism concerns some basic problems: (a) what liberties are basic; (b) what is the opportunity cost of liberty (the value of items that may compete with it); and (c) how best to safeguard liberty. (a) A liberty is basic for commonsense reasons, such as the right to life, or it is a natural right and thus a part of defunct metaphysics, or else it is a piece of fiction that is better ignored. The usual way is to discuss this apropos of the Universal Declaration of Human Rights of the United Nations Organization, here totally ignored. (b) The opportunity cost of liberty is rightly the central topic of discussion in this Companion. For, valuable as liberty is, it invites legislation to constrain it (Hayek [1960] 2011, 183). How much liberty is it possible for the law to permit without risking the stability and functioning of society? The dispute on this is constitutional (as it concerns constraints on legislation). This Companion plays down the role of constitutions. They come up anyway in the discussion of the difficulties that Rawls had when attempting to add a political dimension to his moral theory (121)—with little success (130). For anyone tempted to suggest that this difficulty is due to some anarchist streak that accompanies this Companion, let me note that liberal anarchism also favors legislation and enactment of some constraints on freedom; it opposes only the use of force (Baldelli 1971, 111). For traditional liberals (from Hobbes and Locke to date) liberal anarchism is a challenge, as they recognize the natural rights on the basis of which anarchist theory rests. This Companion differs: “the truth is plain: there are no such rights” (10). This remark helps me see why my attitude to this Companion is less friendly than I wish: disavowal of an idea should not block recognition of its value as, sadly, this Companion does consistently. It does refer here and there to natural rights (and to natural law), yet never respectfully: it offers opposite rules for politics and for scholarship: it endorses the political permission to praise some admittedly false ideas; it also endorses the scholarly prohibition on praising any idea which today all reputed scholars deny. This is regrettable, as it leads to a distortion of history, let me argue.

4. Liberalism in History

The distortion of the history of liberalism here is its oversight of what Karl Popper (1945, chapter 7, i) has called the paradox of freedom: when majorities oppose liberalism, liberals must concede defeat. This defeat occurs in advanced countries if and when the demand is prevalent for strict laws against practices that concern private affairs, especially self-damage (suicide, gambling, drug abuse). This defeat occurs in conservative countries if and where sentiment is widespread against liberty, democracy, and progress. This Companion notes only the second occurrence (4-6) and dismisses it: liberalism holds only for societies of honest, consistent liberals (6). This is an idealization: fully liberal regimes are fictitious; the implementation of liberalism is a matter of degree. Recognition of this fact appears (21, 33) in the chapter on the history of liberalism in the United States (chapter 1), where it is inescapable. The rest of the Companion uses the authority of Rawls to allow for an idealization that overlooks deviations from liberalism, playing down the question, how much deviation is it safe to overlook (9-17). That this is troublesome Richard Arneson admits bluntly once, in his chapter on liberalism and equality. “Questions about secession and immigration reveal that taking a unified nation-state as the unit of analysis takes a lot for granted” (215), he says in displeasure. This Companion thus hardly notices immigration and secession. (Daniel Weinstock offers an interesting discussion of the right of exit, but apropos of multiculturalism, not of nationalism; 318.)

Liberalism was a rare political vision, highly innovative, and very audacious. This is usually overlooked now, because it has been very successful. The audacious vision and the liberal theory of legislation, especially on democratic safeguards for liberty, are sorely missing in this Companion. They receive no presentation and no discussion, except for one cursory observation by Jeppe von Platz and John Tomasi in their chapter on liberalism and economic liberty: “For liberals,” they say, laws and regulations hold because there is always “sufficient and impartial justification” for popular consent to the law (262). They move with disturbing ease between laws unspecified and laws passed “in accordance with the constitution the principles of which are acceptable to all citizens.” Surely they know that this unanimity is fictitious. Hence, what they offer is not observation but the idealization known as the social contract. (On this, Rousseau said his famous terrible words: “This means nothing less than that he will be forced to be free.” Admittedly at times the state may find it necessary to impose compliance on dissidents; yet Rousseau’s calling this regrettable necessity a freedom is a charade).

5. Liberalism and Nationalism

Classically, liberals consider the autonomy inherent in each individual as expressible in diverse rights, including the right of free association that is the right to join any (decent) company. Thus, classical liberals felt no need to discuss nationalism or the identification of individuals with their nations on any other question that concerns the different authors of this Companion: how well does liberalism square with the principles of moral autonomy, democracy, toleration, and equality, as well as with freedom of opinion, market economics, religion, multiculturalism, nationalism, women’s rights, republicanism, and conservatism? For, the classical liberal literature was a quest for the proper response to state violation of individual liberty. The excuse always given for this violation is that it is necessary, so that citizens authorize their rulers to act as they must. This is the theory of the social contract. Since it is a piece of fiction, it leaves open the question that concerned classical liberals the most: does the state have to be as callous as it so often is? Liberals tried to improve the conduct of the affairs of state. The rubber-stamp example here is Adam Smith’s claim that the nation (and the state) is economically better off if the burden of taxes and customs and other duties is minimized. Although he was discussing law-abiding societies, his theory was taken as universal and as the claim that liberal government generates law-abiding citizenry.

An exception is liberal hostility to nationalism. It was a reaction to antiliberalism that burst in the (post-Napoleonic) reaction that promoted the worship of the nation (as a collective) and of the state. Thus, Popper, a liberal and a fierce anti-Romantic, said he allowed for liberal nationalism:

(Of course, if we say that a nation is a number of people who live or have been born in a certain state, then everything is clear; but this would mean giving up the principle of the national state which demands that the state should be determined by the nation, and not the other way round). (Popper 1945, chapter 12, iii)

Yet in the last resort he opposed nationalism as tribalist, contrasting it with the liberal faith in the siblinghood of humanity (Popper 1945, chapter 10, iv; chapter 12, ii and iii). This has a practical import. The nation’s right to self-determination led to the famous debate about the definition of a nation, a debate that rests on suppositions objectionable on many grounds. Here the objection to it is that its applications are controversial: “exactly what constitutes a nation is indeterminate” (80). Perhaps recognizing the right for self-determination for any political group, the liberal way is preferable. Yet this Companion opposes this proposal, as does Popper (1945, chapter 12, iii), because it is problematic, of course. Freedom of association clearly entails the right of secession, as Thomas Jefferson stated; Abraham Lincoln denied it, declaring war on the Confederacy because they seceded. In the chapter on liberalism in the United States, Mark E. Sutton displays unease about this (22, 24) and then he admits that secession is a problem for liberals (34). The rest of the Companion ignores this open problem instead of debating at least the one proposed solution to it: the right to secession is the default option, but “political obligations arising from actual consent and fair play can undermine the legitimacy of secession” all the same (Tomz 1994, Conclusion).

Secession and self-determination belong to a class of problems that classical liberalism ignored, centering as it did on the demand to limit the rights of rulers to impinge on the rights of the ruled— utilizing democratic means for checking power. All applications of liberalism to international relations are thus post–World War 1. The same holds for global politics—with the possible exception of Malthus (Heilbroner 1953), here utterly absent. Discussions of liberalism that disregard global politics when immigration pressure threatens the liberalism of the most liberal countries around seems to me to render it too fictitious and thus irrelevant. The fictitious character of the social contract is a matter of degree: its application to less liberal systems is more fictitious than its application to a more liberal one. And so we need not demand that the contract should apply. Rather we should consider the degree of similarity of an existing system to the contract: we should view it as the degree of the liberalism of the system in question. We may then consider the contract an ideal rather than a foundation or a justification of the extant systems.

6. The Constitution of Liberty

The claim that some popular consent—some—is essential for any legal system is very important, though. It is the cornerstone of Spinoza’s posthumous Political Treatise. He appears here only once (210) as a precursor to today’s advocates of a version of liberalism that does not demand autonomy. This is surprising, because he assumed full autonomy and admitted that he found troublesome the very existence of some heteronomous people, namely, children and madmen (Laor 1984, note 8). Today’s followers of Spinoza are also ignored here. (Young Bertrand Russell is mentioned only in passing; 67.)

The Companion’s lack of appreciation of the audacity of the early liberals ensures that leading antiliberals are treated no better, yet Plato (totally absent from this Companion) deserves praise: he wanted more than the social stability that all reactionaries advocate, demanding sacrifices for it: he wanted the citizens of his Utopian Magnesia to be happy (Popper 1945, chapter 4, ii); no modern reactionary thinker has so high a concern for the well-being of the individual citizen. Now no one knows where people are happier, in petrified societies or in open ones. Yet liberalism is unthinkable without the profound conviction of all of its leading advocates—contemporary as early—that individual happiness requires openness. This may be true, but it invites discussion. For, it is a bitter truth that illiberalism is more popular than liberalism, at least in traditional societies. Illiberalism is also more popular than liberalism among Western intellectuals, especially contemporary Marxists (or pseudo-Marxists).

The worst is yet to come: “although it would be anachronistic to claim that Locke, Kant, Hume and Smith were liberals in any straightforward sense, it is nevertheless possible to identify sources of liberalism in the complex philosophies of each thinker” (330). It is hard to see how it is possible to deny the shining liberalism of these great lights—in any sense, straightforward or not. A footnote testifies that “almost all recent scholarship has attempted to extricate these thinkers from behind the shadow of liberalism,” and refers us to works that look to me quite different: they criticize some misreading, especially by antiliberal authors, of some liberal texts; they discuss diverse versions of liberalism; and they attend to other matters. The question is not of fact, of course, but of what counts as liberalism and what exactly the missions of the cited authors are. It is a difficult situation, indeed: the paucity of references to liberal legislation in this Companion makes it hard to have a comprehensive idea of its image of liberalism and of the peculiarities of nation-states today that admittedly the great liberal philosophers of the Age of Reason could not foresee.

7. What Liberties Are Basic?

Basic liberties, also known as basic rights (Friedrich 1963), are listed in the Universal Declaration of Human Rights of the United Nations Organization. I cannot see why there is a chapter here on the liberalism of the United States but not of the United Nations. True, the latter is ineffective; so was the former at least until the civil rights movement won the day—to the extent that it did. The United Nations Declaration met with the severe criticism of Friedrich Hayek (Feldman 1999). There is no need to defend Hayek to conclude that the question is controversial and to ask, before delving into the controversy, what criteria are available for deciding this matter and how is one to choose between them. Rawls has offered such criteria. Alas, these scarcely help. It is obvious that liberals can hardly avoid discussion of this matter. Clearly, the discussion has to be political and in the political arena. The academy can contribute to the democratic process but not replace it. What criterion can then guide democratic debates on basic rights? Prior to the start of discussion of this question, liberalism is locked up in the ivory tower.

What makes a difference between basic rights and other rights? The right to “life, liberty, and the pursuit” of whatever one chooses to pursue (within reasonable limits) is basic for obvious reasons. Possibly this matter is problematic all the same; to make it less problematic, von Platz and Tomassi propose to use the famous criterion of Rawls that he termed “the veil of ignorance” (271). I do not see how. This criterion rests on the assumption that we know which aspect of a situation to ignore (such as race or religious denomination) and which not. This is circular reasoning. In practice, it is the laws that determine this matter, and the law is given to reform and hopefully to improvement (Popper 1945, chapter 6, ii). If we wish to stay aloof of concrete situations and the laws that govern them, we may agree to try and decide ad hoc for any two rights which of them is more basic. Alternatively, we may consider empirically the following question that Hayek and his fans have posed (Caldwell and Montes 2014, 41, 53): what will bring personal freedom sooner, the free market (Hayek) or democratic controls (Popper)? This renders personal freedom more basic than either democracy or the free market, which I find very agreeable. Others may understand Hayek to ask (loc. cit.), of the two freedoms, political and economic, which will emerge from the other? Hayek argued that societies with free-markets will democratize whereas those with planned economies will breed repression.

In this Companion, the quest for basic rights is referred to either apropos the quest for natural rights that it repudiates or apropos the quest for justification that it fosters (90, 139n84, 144, 151, 157) but does not carry through. The quest for basic rights is then sheer ballast (244, 249). The efforts of Rawls to ameliorate matters admittedly meet with quite a few obstacles (167-70, 179, 181).

8. The Opportunity Cost of Liberty

The most obvious difficulty that nonliberal societies have in their wish to become liberal is that of mutual trust: in many common situations, it is in the interest of every member of any society as well as in the interest of the society as a whole to behave in accord with mutual trust, but the desire to reach that situation is frustrated (due to the free-rider problem that places the situation in an adverse Nash equilibrium; 123-24, 133). If anything can help get out of this frustration, it is liberal legislation (one that prevents the occurrence of a prisoner’s dilemma). Here legislation is ignored. Philip Cook, who raises the question (91), takes recourse to works of David Gauthier that have raised a lot of controversy. Disputants may block the controversy by observing that in effect Gauthier proposes efforts to legislate rules that avoid problematic traps (95-96).

If the contributions to this Companion share a thread, let me repeat, it is that of the opportunity cost of liberalism, they all consider aspects of it: how much liberty is it reasonable to give up for the sake of other valuable characteristics, such as moral autonomy, democracy, toleration, equality, freedom of opinion, market economics, religion, multiculturalism, nationalism, women’s rights, republicanism, and conservatism? This is a way to disregard Machiavelli’s principle of liberal legislation: “if the populace be made the guardians of liberty, it is reasonable to suppose that they will take more care of it” (386). This principle suggests that legislative improvement is limited by public opinion. This is why the Supreme Court of the United States took its time before it adjudicated that there is no equal-but-separate education system. (The constitutionality of separate-but-equal education was upheld in Plessy v. Ferguson, 1896; this was overturned in Brown v Board of Education, 1954, yet the overruling was questioned and had to be reiterated twice.)

9. How Best to Safeguard Liberty?

The legislative safeguard for individual liberty is a major controversial issue in the liberal literature that is here overlooked. Spinoza noted this (Lucchese 2011, 77), expressing sympathy for Machiavelli for his counsel to adopt as a principle the maxim not to trust princes (Psalm 146:3), a principle that follows from his liberal principle of optimizing the people’s wish to be law-abiding. Tradition deems Locke’s Second Treatise on Government as canonic (215), as he was the first to have discussed safeguards explicitly and in detail, when he suggested as a principle pitting king and parliament against each other (Chapter 18, of Tyranny). We forget this, because Britain is today a constitutional monarchy. Before Locke, Machiavelli recommended the separation of church and state, and Hobbes followed him. Spinoza recommended the establishment of a state-church. The means for safeguard are, indeed, variable (Popper 1945, chapter 7, ii). They are the separation of powers, popular elections (of the legislature or of the administration), referenda, impeachment, and more.

The liberal principle of legislation is but a part of the liberal tradition, but it is its backbone. Consider unquestionably liberal principles—say, of freedom of conscience (25, 64, 114, 119, 135, 197, 201, 203, 285, 306, 315). What this freedom shares with other freedoms, such as the right to bear arms, is Machiavelli’s idea of making the law befriend the citizens. Likewise, although the avoidance of conflict of interest of public servants is always deemed wise, its obligatory application is a peculiarity of the modern liberal democratic nation-state: it is a situation that tempts people to break the law, and liberalism suggests to seek legislation against it. Making liberalism signify in international politics, too, is a matter of legislation: negotiations should not rest on trust but on guarantees that rest on democratic controls (Nash 1990, 26).

Still, liberty is not only political, it is also social. Yet liberalism says, wise legislation improves conditions for agreeable customs. The most important traditional customs are the illiberal attitudes toward the infidel. Liberal laws restrain such illiberal custom and are thus also educational. (Only some casual remarks appear here on liberal education and teaching.)

This Companion refers to legislation only fleetingly and apropos of liberal views on economics—chiefly of Hayek ([1960] 2011, 293, 320), who definitely opted for liberal legislation—not of democratic controls over political power, but by the minimal legislation that suffices to secure the freedom of the market. Popper (1945, chapter 7, ii) rejected this idea of Hayek as insufficient and advocated democratic controls instead. He even declared that the idea of minimal legislation is inconsistent—as it is hit by the paradox of freedom (chapter 17, iii). In this Companion, in a chapter (chapter 14) devoted to liberalism and nationalism, Paul Kelly says, “The debate about the compatibility of liberalism and nationality has been at the heart of the philosophical disputes between individualists and communalists and between cosmopolitanism and particularism as approaches to political rights and values” (330). Kelly ignores the fact that Skorupski late takes note of, “The natural tendency of liberalism is towards cosmopolitanism” (410), and that this Companion uses the authority of Rawls to block controversy.

No matter: in any case, liberalism and nationalism must live together as Niebuhr has argued nearly a century ago and as Gellner has described more recently in historical terms (Niebuhr 1932; Gellner 1983). The restriction of the modern state to a nation renders it less liberal than the ideal, yet liberal legislators use it as a lever to make citizens more law-abiding. Cosmopolitanism and anarchism are utopian and so they are fictional; advocating them is irresponsible. The traditional theory renders the social contract into a full justification of the state. Clearly it is more reasonable to allow for a partial justification if not to give it up as a bad job (Popper 1945, chapter 24).

This is no theoretical nicety. The liberal maxim, laissez-faire et laissez-passer, was practiced in the nineteenth century but given up in the twentieth, and this we must consider a regress due to the improved means of transportation. This is not to oppose restriction on migration but to consider it an obstacle to liberalism (Hayek [1960] 2011, 500) and to propose that there are better means to reduce migration-pressure such as combating pockets of poverty (Rosenstein-Rodan 1981) and that it is imperative to consider them seriously (Sassower 1995). This is where the action is, and it leaves this Companion far behind. It may be useful, however, for the writing of a canonic version of the liberalism of the late twentieth century: canonic versions become concluded episodes of intellectual history (Agassi 1986, opening).

To conclude, the social contract is fictitious and taking it as real renders the liberal state utopian; Rawls and this Companion ameliorate the situation somewhat by taking this utopianism as reality idealized (in a Galileo-style idealization). Yet that approach raises insoluble problems. A better way to view the contract is to place it not in a fictitious past and not in an even more fictitious present but in the virtual future—as an unattainable ideal proper (as a Kant-style ideal): the more liberal a state is, the more it resembles the situation that the social contract theory depicts, meaning, the situation in which all the citizens freely approve of the law and wish to be law-abiding (Agassi [1999] 2012, chapter 2). The moral from the story is obvious: justification is stagnation; criticism is better as it invites improvement (Popper 1945, chapter 23).