New Approaches to Classical Liberalism

Abstract

This article focuses on the following three novel and original philosophical approaches to classical liberalism: Den Uyl and Rasmussen’s perfectionist argument from meta-norms, Gaus’s justificatory model, and Kukathas’s conscience-based theory of authority. None of these three approaches are utilitarian or consequentialist in character. Neither do they appeal to the notion of a rational bargain as it is typical within contractarianism. Furthermore, each of these theories rejects the idea that classical liberalism should be grounded on considerations of interpersonal justice such as those that are central to the Lockean tradition. It is argued that these three theories, despite their many attractive features, fail to articulate in a convincing manner some central classical liberal concerns.

Full text

RMM Vol. 3, 2012, 22–50
http://www.rmm-journal.de/
Nicolás Maloberti
New Approaches to Classical Liberalism*
Abstract:
This article focuses on the following three novel and original philosophical approaches to
classical liberalism: Den Uyl and Rasmussen’s perfectionist argument from meta-norms,
Gaus’s justificatory model, and Kukathas’s conscience-based theory of authority. None
of these three approaches are utilitarian or consequentialist in character. Neither do
they appeal to the notion of a rational bargain as it is typical within contractarianism.
Furthermore, each of these theory rejects the idea that classical liberalism should be
grounded on considerations of interpersonal justice such as those that are central to the
Lockean tradition. It is argued that these three theories, despite their many attractive
features, fail to articulate in a convincing manner some central classical liberal concerns.
1. Introduction
A classical liberal order is characterized by a state that is both limited and min-
imal. Although classical liberals disagree about the exact functions that such a
minimal state is supposed to perform, that is, about how minimal it should be,
the classical liberal state is unarguably small relative to virtually all existing
states. Classical liberals generally hold that the main tasks of the justified state
are to protect individuals’ right to liberty and a system of robust property rights,
and to provide those public goods that are conducive to an adequate protection
of such individuals’ fundamental rights.
A classical liberal order can be defended on different grounds. In other words,
different reasons could be offered in support of the classical liberal order over the
alternatives. The articulation of those reasons, and the discussion about their
respective merits, is the subject matter of political philosophy. Traditionally,
there have been two major and clearly distinct strands of classical liberal phi-
losophy. The first one is the utilitarian strand, which argues for limits on the
state on the basis of the greater aggregation of benefits that such a limitation
is supposed to yield. The second traditional strand of classical liberalism jus-
tifies the minimal state as a mere expression of the respect demanded by the
enforceable duties of justice individuals owe to each other as holders of certain
*I thank my colleagues at Liberty Fund for a very helpful discussion of this manuscript. I also
thank the participants in the Liberty Fund Colloquium on “Classical Liberalism in Contemporary
Political Philosophy”, held in La Jolla on January 2011, for their many helpful insights.

New Approaches to Classical Liberalism 23
natural rights. From this point of view, whether the observance of the demands
of justice results in an aggregation of benefits that is as great as it can be is of
no moral importance. While the utilitarian strand of classical liberalism finds
its paradigmatic theorist in Jeremy Bentham,1the natural rights version finds
him in John Locke.
It must be noted, however, that although historically predominant, not all
traditional defenses of a liberal order can be framed in either one of these two
alternative approaches. An argument could be made, for example, for the in-
clusion of a third, distinct strand of classical liberalism: the sort of contrac-
tarianism that finds inspiration in Hume and his reliance on mutual advantage.
Contrary to the utilitarian strand, the contractarian one rejects the notion of ag-
gregating benefits, and the corresponding sacrifices that such aggregation might
entail for the liberty of some. Contrary to the Lockean strand, it claims that the
only restrictions to our behavior that we should be willing to accept are those
from which each and all of us are expected to gain.
In recent years, there have been some important contributions to the philo-
sophical foundations of classical liberalism. Some of those contributions are
characterized by important new insights and arguments within traditional
frameworks.2Others, however, are characterized by genuinely novel forms of ar-
gumentation. Although certain aspects of these new approaches certainly have
historical antecedents, they cannot be subsumed easily in the major traditional
strands mentioned above. This article will focus on the following three recent
and novel approaches to classical liberalism: Douglas Den Uyl and Douglas Ras-
mussen’s perfectionist argument from meta-norms (2005), Gerald Gaus’s justi-
ficatory model (2003; 2007; 2010; 2011), and Chandran Kukathas’s conscience-
based theory of authority (2003). Although it is perhaps important to emphasize
that their differences might be more important than their similarities, these
three recent approaches to classical liberalism do seem to share a common
ground. They all seem to reject an understanding of political philosophy as a
mere species of ethical inquiry. They seem to hold, rather, that political phi-
losophy is a genus of its own. The truth of the sort of moral considerations to
which we might appeal in evaluating the correctness of human interactions is
not regarded by these theories as political philosophy’s appropriate concern.
This article will present the central line of argumentation in each of these
three theories. Although in doing so it is necessary to ignore many of their im-
portant complexities, it might still be possible to draw attention both to their
most important virtues, as well as to what we might regard as their most impor-
tant limitations.
1The characterization of Bentham as a classical liberal is more accurate in relation to his earlier
writings. In his later writings, he is to be found suggesting more and more economic functions for
the state.
2See, for example, Eric Mack (2002a; 2000b; 2010), and David Schmidtz (2006; 2010).

24 Nicolás Maloberti
2. A Perfectionist Basis for Classical Liberalism:
Den Uyl and Rasmussen’s Aristotelian Approach
It is not uncommon for classical liberals to stress the importance of establishing
a political order capable of securing the benefits of peace and social cooperation,
and of preventing such an order from making burdensome demands on its citi-
zens. Since the sort of state favored by classical liberals is rather minimal, it is
also only natural to think that classical liberals must adopt a minimalist moral
outlook, and remain silent regarding some fundamental ethical questions, such
as the question of virtue or moral excellence. It could be thought that, over
those matters that do not affect the possibility of social cooperation, individuals
are free to decide as they wish, and that whatever they decide is regarded as
appropriate. Den Uyl and Rasmussen believe, however, that this is a mistaken
conception of classical liberalism. They argue that classical liberalism is most
defensible when grounded on a perfectionist basis, rather than on some version
of moral minimalism.
The most comprehensive formulation of their argument is found in Norms
of Liberty: A Perfectionist Basis for Non-Perfectionist Politics (2005). Den Uyl
and Rasmussen’s basic claim is that the characteristic features of the classi-
cal liberal order are best understood as addressing the requirements of human
flourishing. In other words, they suggest that the best grounding for the non-
perfectionist character of classical liberal politics is of a perfectionist nature. In
their view, the best perfectionist reasons to which we can appeal advise against
the implementation of any perfectionist political measures.
The starting point of all perfectionist moral and political theories is an ob-
jective account of the human good.3For those who find their inspiration in
Aristotle, as Den Uyl and Rasmussen do, such an objective account is formu-
lated in terms of ‘human flourishing’. What is objectively good for humans is to
develop their ‘nature’, that is, the capacities that are essential to and distinctive
of human nature, rather than merely to satisfy the preferences that they might
happen to have at any given time, or even under some ideal condition of full
information, as is held by the most plausible subjective accounts of well-being.
Initially, we might think that all perfectionist theorists will tend to endorse an
illiberal order in which individuals are forced to act according to their objective
good, and against their own preferences. Yet this is not true. Whether perfec-
tionism allows for extensive governmental direction of people’s lives will depend
on whether individual liberty is itself regarded as an important part of human
flourishing.
Mill’s famous defense of the harm principle on the basis of the importance of
individuality is perhaps the most well-known historical example of a liberal per-
fectionist argument (1869).4Within contemporary political philosophy, authors
such as Joseph Raz (1986), Thomas Hurka (1993), and Steven Wall (1998) have
3For an overview and defense of the main perfectionist claims, see Wall 2009.
4Von Humbolt’s is perhaps the clearest historical example of a perfectionist argument against both
the paternalistic state and the welfare state. His argument relies on the effects that welfare

New Approaches to Classical Liberalism 25
also defended liberalism on perfectionist grounds. They reject the plausibility of
the sort of stance exemplified by Rawls and his followers, according to which the
state should be neutral regarding particular conceptions of the human good.5
For liberal perfectionists, the neutralist ideal is either unattainable (if focused
on the effects of state actions) or unconvincing (if focused on the justification of
those actions). As perfectionists, they claim that the ends of the state should be
to create and maintain the conditions that are necessary for good lives. As liber-
als, they claim that in the creation and maintenance of such conditions, the state
should give sufficient priority to individual liberty, since personal autonomy is
an essential constituent of a fully good life.
In significant ways, however, Den Uyl and Rasmussen’s theory is different
from all these other perfectionist liberal approaches. Contrary to those previ-
ous authors, Den Uyl and Rasmussen do adhere to the thesis of state neutrality
when understood as an ideal regarding how the political order should be struc-
tured. They do so, however, on perfectionist grounds.6
Den Uyl and Rasmussen argue that human flourishing is objective but highly
individualized. Sociability, knowledge, leisure, aesthetic appreciation, creativ-
ity, moral virtue, health, pleasure, self-esteem, and practical wisdom are some
of the most important goods that are necessary for human flourishing. Regard-
less of an individual’s preferences, his or her life will be deficient if it fails to
partake in some form of each of these general goods. The proper weightings
for these general goods, however, is not something that can be determined in
any abstract or universal manner. This will be determined, again, not by the
mere preferences of the individuals, but by their own objective “circumstances,
talents, endowments, interests, beliefs, and histories” (80). Thus, within this
perfectionist outlook, there are many forms of human flourishing, and none of
them is more valuable than the others. There are, however, forms of human
programs have on the character of those who are supposed to benefit from them, as well as on the
character of others (1854).
5The particular way in which this neutrality requirement is supposed to be understood is, however,
subject to much disagreement. As Gaus notes, “Neutrality is sometimes understood as a doctrine
about: constraints on legislation or legislators, the proper functions of the state, the prohibition
of the state ‘taking a stand’ on some issues, the prohibition of the state enforcing moral character,
or the requirement that the state take a stance of impartiality. Alternatively, neutrality can
be understood as a requirement of a theory of justice rather than state action. There are also
differences about whether neutral states (or theories of justice, or legislators) are supposed to
be neutral between conceptions of the good, controversial conceptions of the good, conceptions of
the good that citizens may rightfully adopt, comprehensive doctrines and conceptions of the good,
particular sets of ends, particular or substantial conceptions of the good, ways of life, or final
ends.” (2009, 81–82)
6In this sense, their theory is more similar to Kymlicka’s (1990), which argues that the best way
for the state to promote the good is for it to adhere strictly to the doctrine of state neutrality,
while the liberal perfectionist authors reject such a doctrine, and thus are more prone to favor the
direct promotion of the good through non-coercive state efforts that are claimed not to infringe
upon individuals’ autonomy. Whether this is indeed possible is, of course, a matter of dispute
once we recognize that both taxes and subsidies distort the opportunity costs involved in people’s
choices, and thus can be regarded as manipulative. On this point, see Lecce 2008, 121–123.

26 Nicolás Maloberti
flourishing that are best for specific individuals. This is the sense in which their
account of the human good is objective.
Given that individuals might flourish in different ways, the question natu-
rally arises: what sort of political order is the most adequate? Is it possible to set
up a political order that will not prejudice the situation in favor of some forms of
flourishing over others in a structural fashion? As the authors themselves put it,
is it possible “to create and maintain a social/political context that is in principle
both open to divergent forms of self-perfection and consistent with all?” (298)
Those are the questions that the authors refer to as “liberalism’s problem”. It is
important to note that the problem arises from the authors’ understanding of the
requirements of human flourishing. They claim that the pluralism of the forms
of human flourishing points to liberalism as the appropriate solution. This is the
sense in which those previous questions are liberalism’s problem. Liberalism is
best understood as a political theory addressing the issue of how society should
be organized given the fact that individuals’ fundamental responsibility is their
own flourishing, and that while they need each other, they also need their own
moral space.
One of the most crucial points made by Den Uyl and Rasmussen is that, de-
spite the diversity that human flourishing can take, it cannot take place without
self-directed activity. They claim that no other features of flourishing could be
regarded as such in the absence of self-direction: “self-direction is the condition
through which any good becomes a good for a person.” (295) As defined by the
authors, self-direction is “simply the act of bringing to bear one’s reason and
judgment on one’s surroundings, making plans to act within or upon them, and
conducting oneself accordingly” (276). Self-direction is what makes us the au-
thors of our own actions, and allows us to conduct ourselves according to our own
lights. The lack of a priori rules that dictate the proper weighting of the gen-
eral goods necessary for flourishing is intrinsically linked with the importance
of self-direction. The exercise of practical reason required by such weighting is
something that cannot be done for others. Thus self-direction is a feature of hu-
man flourishing of which it can be said that “each and every person in a concrete
situation has a necessary stake” (88). Given the diversity of the forms of human
flourishing, no such thing could be said of any other feature.
This, according to Den Uyl and Rasmussen, has important implications for
the design of a political order. Self-direction does not exist for an individual
when another person directs that individual without her or his consent, since a
person being used in this way is not able to follow his or her choice (280). The
initiation of physical force is the single most threatening encroachment upon
self-direction, as well as the most basic. Therefore, if we are concerned with
human flourishing, such activity must be banned in all its forms (which is taken
to include fraud and threats of physical force). Such a ban is the implication of
the individual right to liberty, “which allows each person a sphere of freedom—a
‘moral space’ or ‘moral territory’—whereby self-directed activities can be exer-
cised without being invaded by others” (90). The use of physical force is autho-

New Approaches to Classical Liberalism 27
rized “only for the protection and preservation of the possibility of self-direction
in society” (280).
The right to liberty is thus justified by an appeal to the nature of human
flourishing. The right to liberty secures the possibility of human flourishing
by seeking to protect the possibility of self-direction. If we are to reconcile our
natural sociality with the diversity of human flourishing, the protection of the
right to liberty is paramount.7In Den Uyl and Rasmussen’s theory, however,
the individual right to liberty is not limited to what one does with oneself. It
also covers “the expression of the metaphysical fact that human beings are ma-
terial beings that live and flourish through the exploitation of opportunities in
the material world” (106). Thus self-direction requires that individuals “need to
have the use and control of what they have created and produced protected from
being used without their consent” (98). Self-direction is thus not necessarily re-
spected by any random distribution of property rights: “A human being needs
to have property rights to things that are the result of his or her own judgments
and productive efforts. A person’s choices and judgments cannot be said to have
been respected if the material expression of those judgments is divested from
the individual.” (98) The right to property is thus “simply another name for the
freedom to act and, hence, to live according to one’s own choices” (100). Differ-
ent rules of original acquisition, as long as they are universal and do not make
one’s right contingent “upon paying off others”, might be acceptable (105). Only
unrestricted voluntary transfer of such acquisitions will, however, be compatible
with the fundamental priority given to consent as the means of maintaining the
integrity of moral territories interpersonally.
According to Den Uyl and Rasmussen, positive or welfare rights, that is, the
sort of rights usually advocated by modern liberals, are excluded from the po-
litical order required by the correct understanding of human flourishing. This
is because those rights “require that the lives, resources, and conduct of indi-
viduals be used or directed without their consent. They encroach upon the self-
direction of persons, interfere in their lives, and treat individuals as objects for
non-consensual use by others.” (281)8
This is a highly abbreviated and incomplete exposition of a highly subtle and
complex theory. This brief exposition, however, should be sufficient to highlight
some of the most salient and novel aspects of this approach to classical liberal-
ism.
7We might wonder whether the plurality of human flourishing is as important for establishing the
right to liberty as the preeminence of self-direction is. In a later writing, the authors seem to
recognize this point: “the value of liberty is easier to see when homogeneity is diminished. We do
not think, however, that a lack of homogeneity is primary and essential to our defense of liberty.”
(2008, 200)
8Contrary to the right to liberty, the authors would argue that positive or welfare rights do not
establish ‘compossible’ areas of moral freedom, that is to say, freedom which can be exercised by
one person without encroaching on or diminishing that of others. This alleged feature of positive
rights is sufficient to make them inappropriate aspects of a legitimate legal and political order.
Yet it is significant to note that the authors also seem to believe that positive or welfare rights
are also incompatible with the restriction against systematic bias that they place on meta-norms,
since they will presumably favor some forms of human flourishing more than others (309–310).

28 Nicolás Maloberti
In the first place, it should be clear that in Den Uyl and Rasmussen’s theory
individual rights are not established by a direct appeal to principles of interper-
sonal justice. The theory might certainly be understood as providing a theory
of political justice that emphasizes the need for protecting individuals’ liberty
rights. The authors are opposed, however, to the attempt to justify such rights
merely upon the reflection of the propriety involved in the different ways in
which individuals might deal with one another in a pre-political scenario, as is
typical within Lockean perspectives. It is in this sense that they reject think-
ing of politics as “the effective institutionalization of what is ethical”, and claim
that liberalism’s essential uniqueness as a political theory is “its divestment of
substantive morality from politics” (16–17). In their view, liberalism is a po-
litical doctrine that is best understood as addressing rather specific social and
philosophical needs.
The authors choose to refer to rights as ‘meta-norms’, since rights merely
provide the context under which individuals might flourish in diverse ways with-
out requiring that the flourishing of any other individual or group be sacrificed.
Contrary to regular ethical norms, meta-norms should not be taken to guide in-
dividual moral behavior. The authors claim that liberal political principles are
not “straightforward ethical principles like any others” (27), and should not be
“contrasted with other ethical philosophies” (34), as both critics and support-
ers of liberalism tend to do. Moreover, they claim that rights “are not directly
concerned with human flourishing, virtue, or even moral obligation as gener-
ally understood” (63). Rights are merely concerned with context setting, that
is, “with providing guidance in creating, interpreting, evaluating, and justify-
ing political/legal systems” (63). Den Uyl and Rasmussen believe that failing
to understand this specific function of individual rights is responsible for much
of the misdirected criticism of them. Individual rights are not primary ethical
principles, so “it is not at all permissible [. .. ] to derive or infer moral norms or
values from them” (36). Rights are a mere function of “the shared need to act in
a peaceful and orderly social/political context” (91). They allow, merely, for the
possibility of living well. They do not, and cannot, guarantee that individuals
will indeed live well.
Thus, the authors think it is a mistake to regard ethical principles as dif-
fering only with respect to subject matter, and not according to type. Rights,
in their view, merely create the institutional setting under which ethical norms
may be effectively followed. From a political point of view, meta-norms have an
incredible importance, for they allow for the very possibility of order and har-
mony among the plurality of forms of human flourishing. From a personal point
of view, however, meta-norms are incredibly unimportant in the sense that they
have nothing to say about how to live well. Those individuals who let their be-
havior be fully and exclusively guided by them will live highly deficient lives.
Those theorists who resist liberalism for its alleged moral minimalism and sub-
jectivism are, in Den Uyl and Rasmussen’s view, conflating two different issues
into one. First, there is the question of what moral excellence, flourishing, or
virtue requires from individuals. Second, there is the question of what institu-

New Approaches to Classical Liberalism 29
tional setting is best at enabling each and every individual act in those morally
virtuous ways. In their view, there is no contradiction or theoretical tension in
holding both that there is an objective human good that individuals are obliged
to strive for, and that the most adequate institutional setting for individuals be-
ing able to do such a thing is one that places no such perfectionist demands on
them. Their claim is actually stronger. Their basic claim is that the proper un-
derstanding of the requirements of human flourishing establishes the need for
such an institutional setting.
Within the debate on the moral foundations of liberalism, those who oppose
perfectionist approaches do not necessarily reject their characteristic objective
account of the good. They usually focus their objections on the need to bracket
such issues in order to secure the allegiance of citizens who reasonably disagree
on the matter. But the particular conception of the human good defended by
Den Uyl and Rasmussen differs in important ways from conceptions centered
on the notion of autonomy typical of other liberal perfectionists. In particular,
Den Uyl and Rasmussen’s version of perfectionism is markedly pluralistic, not
merely in the sense that there are several goods, but also in the sense that the
relative importance of each of those goods varies greatly from individual to in-
dividual. Thus, although individuals’ ability to direct their own lives is still the
most predominant aspect of their account of the human good, their particular
understanding seems to be compatible with a plurality of ways of life in a man-
ner in which autonomy-based conceptions might not. In this sense, the recurring
anti-perfectionist objection that in modern circumstances there could be no sin-
gle conception of the good capable of serving as the basis of a stable political
order loses most of its force.
Den Uyl and Rasmussen’s conception of human flourishing is also capable
of grounding a tighter connection with liberal politics than what we can expect
from typical conceptions of autonomy favored by liberal perfectionists. The prob-
lem with liberal perfectionist theories, assessed from a prior commitment to a
robust notion of individual liberty, is that they seem to require making the im-
plausible claim that autonomy is either the only intrinsic good or one with lexical
priority over all other goods.9For if autonomy is merely a necessary component
of a good life, it is not clear why the state could not suppress some autonomy
for the sake of other goods that are also necessary for the good life, such as
health, safety, or aesthetic appreciation. Den Uyl and Rasmussen’s reliance on
the importance of practical reason and self-direction for an individual’s proper
articulation of the several goods involved in human flourishing might be thought
of as addressing this worry.
All versions of liberal perfectionism, however, face the question regarding
the extent to which perfectionism is indeed compatible with liberal politics. As
Wall notes (2008), strong rejections of state interference within liberal perfec-
tionist theories run the risk of overstating the importance of the negative effect
9The implausibility of this claims lies in the fact that any slightly more autonomous life will have
to be judged better than any less autonomous life, regardless of what else the latter form of life
has that the former form lacks. On this point, see Wall 1998.

30 Nicolás Maloberti
that such an interference has on individuals’ capacity to lead good lives. From a
liberal perfectionist standpoint, it is clear why the state should not force people
to take on only good activities, since this would eliminate the very possibility of
leading an autonomous life. Yet it is less clear, for example, why the state should
not eliminate some unmistakably bad options that would ruin the chances of
leading a good life for oneself without ruining that of others. After all, individ-
uals can exercise their autonomy in choosing among all of the many remaining
options. For this reason, it is not uncommon for liberal perfectionists not to
endorse strong rejections of paternalistic interference as demanded by classical
liberalism.10
Contrary to other liberal perfectionists, Den Uyl and Rasmussen reject the
notion that the function of the state is to promote the good or human flourish-
ing. The role of the state is merely to provide the conditions for the possibility
of human flourishing, by securing a peaceful and orderly social order. Given the
importance of self-direction, and the plurality of the forms of human flourishing,
this is all that the state can do. Any attempt by the state to promote human
flourishing in an active manner, even if it is done with great care so as not
to violate the requirements of autonomy or self-direction, as other liberal per-
fectionists propose, will inevitably favor some forms of human flourishing over
others, and this is unjustifiable. Despite this difference between Den Uyl and
Rasmussen’s view and that of other liberal perfectionists, however, the question
might still arise: why, in creating the legal structure of society, should the state
allow for the possibility of individuals choosing unmistakably bad options for
all forms of human flourishing? Why should not the state, in designing the legal
order, close those options if this can be done without compromising peace and or-
der, and if by doing so no form of human flourishing is given priority over others?
While Den Uyl and Rasmussen reject the idea that the aim of politics is to assist
individuals in flourishing, as perfectionists, they still claim that the construc-
tion of the political and legal order must be guided by the common requirements
of human flourishing.11 So the question is, what perfectionist basis could there
be for giving individuals the freedom to act in ways that, according to the right
conception of human flourishing, are unmistakably bad for themselves?12
10 For example, Wall says: “It is an unfortunate fact that in free societies some pursue lives of waste
and ruin. Given the value and importance of autonomy, there are substantial limits to what
governments permissibly can do to discourage such lives. But the limits, while substantial, may
not rule out all efforts to discourage bad options.” (1998, 219) See also Raz 1986, 412–423, and
Arneson 2000. As already suggested, it is also not uncommon for liberal perfectionists to support
political action oriented towards the promotion of perfectionist values other than autonomy, such
as the public funding of the arts. See, for example, Hurka 1993, 158–160, and Wall 1998, 213–219.
11 In a later writing, they write: “politics is itself a tool of human flourishing and thus in that
sense the success of flourishing is of concern to the political order—that is, politics exists because
flourishing is the central human concern. Flourishing is not of concern to the direct ends politics
seeks to secure, but it is of concern to the nature and purpose of having political arrangements.”
(2008, 200)
12 Perhaps the question could be formulated in these terms: why should self-direction be the only
basis for metanormativity? See Thunder 2008 and Thomas 2008 for objections along these lines.
See Den Uyl and Rasmussen 2008 for a reply.

New Approaches to Classical Liberalism 31
The authors’ answer would presumably be connected to the central role that
self-direction plays in their theory.13 The suggestion that individuals could ex-
ercise their self-direction in choosing among all the many remaining options,
as other liberal perfectionists might easily admit with respect to their concep-
tions of autonomy, is not appropriate for Den Uyl and Rasmussen’s theory. Self-
direction is not simply one general good among others that individuals need to
enjoy to some degree for them to be able to flourish. The exercise of self-direction
by an individual is what turns any generic good into a genuine, concrete good for
that individual. This is why it was suggested that the possibility of trade-offs
between self-direction and other goods seems to be excluded from their theory
as well. The basic thought would then be that for individuals to lead a good life,
they must identify life’s values for themselves.14 Those who are prevented from
choosing or even considering some unmistakably bad options will necessarily be
precluded from exercising their own judgment involved in choosing or consider-
ing those options, and this is not something that contributes to their flourishing.
This is a highly plausible thought. In presenting it as a general argument
against certain paternalistic policies, however, we could be overstating the sig-
nificance of self-direction in relation to the significance of the benefits that could
be successfully obtained through coercive interference. Evidence of this is that
coercive forms of paternalism would not be rendered merely illegitimate, but in
some way nonsensical; since it would be simply impossible to force somebody
to act according to his or her best interest. This is certainly true in many oc-
casions, such as when an activity improves a person’s life only if the person
autonomously endorses the value of such an activity, as is the case with religion.
It does seem to be false, however, in many other occasions, especially if we hold
an objective account of the human good.
Perhaps it is not necessary to think of the usual examples involving some
form of dangerous drug. According to any plausible account of well-being, a life
entirely dedicated to extremely trivial pursuits would also be of great disvalue.
Facing these types of cases, a non-perfectionist liberal view will simply empha-
size that individuals have the right to live their own lives according to their
own decisions, even if those decisions are clearly contrary to their best interests.
From a perfectionist perspective, however, the rights individuals have are pri-
marily determined by the requirements of human flourishing. We might then
be forced to choose between denying, contrary to appearances, that the under-
taking of certain activities, or at least beyond a certain point, is damaging for
human flourishing, or denying, contrary to a basic classical liberal tenet, that
13 Den Uyl and Rasmussen address the related issue of why the state should not guarantee educa-
tion or a certain level of material security (2005, 330–331). In that case, their argument is related
to the restriction against systematic bias and the impossibility of guaranteeing that such exter-
nal goods will be incorporated in flourishing enhancing ways by those who are supposed to benefit
from them.
14 This is also the thought behind Dworkin’s idea that the value of a good life “lies in the inherent
value of skilled performance of living” (1995, 241).

32 Nicolás Maloberti
individuals have a right to perform such activities even when they do not harm
others.
There are indeed contingent reasons, such as the inefficiency of the state or
its inability to act within limits, to which the liberal perfectionist could appeal
in blocking the legitimacy of state interference against actions that do not harm
others. There is no reason why a perfectionist argument could not appeal to
such sort of considerations in formulating its political recommendations in favor
of a classical liberal order. In doing so, however, the initial worry might not be
fully dissipated. This is because that worry is as pressing when understood in
purely philosophical, rather than practical terms. Understood as such, the worry
has to do with whether a perfectionist approach can adequately capture a basic
classical liberal thought: that individuals should not be forcibly precluded from
acting in ways that do not harm others, even if by doing so we could effectively
prevent them from acting against their own interests.
3. Classical Liberalism as Endorsed by All:
Gaus’s Justificatory Argument
Justificatory liberalism is a family of liberal views, which stresses that the basic
requirements of a just and legitimate state is that it can be justified to all reason-
able citizens. Contrary to perfectionist versions of liberalism, which have some
historical antecedents, justificatory liberalism is fundamentally a contemporary
approach. The central motivation behind it is the idea that a plausible political
philosophy must make room for the fact that contemporary societies are char-
acterized by deep-seated reasonable differences about what makes life worth
living. Justificatory liberals claim that any plausible political doctrine must be
articulated in a way that makes sense to everybody. The work of John Rawls,
especially his later writings (1993; 1999), has been very influential in shap-
ing this sort of approach. In those writings, Rawls’s main concern is precisely
with the justice and stability of a society of free and equal citizens who remain
profoundly divided by reasonable religious, philosophical, and moral doctrines.
Rawls believes that a plausible account of liberalism should not be grounded on
any comprehensive theory, such as those defended by liberal perfectionists, that
appeals to substantive ideals of human excellence. Liberalism should be con-
ceived, rather, in political terms. Understood in such terms, liberalism should
be seen as the product of an overlapping consensus between different and con-
flicting views of morality, metaphysics, religion, and the human good.
The task justificatory liberals assign to themselves is to identify the prin-
ciples that can be justified to all reasonable persons seeking to live under im-
partial principles of justice. Contrary to traditional social contract theorists,
they are not concerned with the actual, implicit, or even hypothetical consent
of real citizens. Like modern contractarian theorists, such as David Gauthier
(1986), justificatory liberals are concerned with what some idealized version of
citizens would agree to. Unlike those modern contractarian theorists, however,

New Approaches to Classical Liberalism 33
they do not endorse an idealization purely in terms of instrumental rational-
ity. Principles of justice are not understood as the outcome of a rational bargain
among self-interested persons. They are understood, rather, as those princi-
ples to which all persons who have the capacity to put aside personal ends and
goals in order to act on justified moral claims, and who seek to regulate their
interactions in an impartial manner, would agree. This is the sense in which
the idealized agents involved in the justificatory process are regarded as reason-
able, rather than merely rational. Reasonable agents are rational agents, but
they are not concerned merely with their own well-being.
Gerald Gaus is one of the main exponents of justificatory liberalism.15 Fol-
lowing Rawls, many justificatory liberals formulate their theories by imposing
restrictions on the sorts of reasons that reasonable individuals might advance.
Reasons should be shared. As conceived by these theorists, the project is to se-
cure consensus on a common, public justification of liberal principles. The ideal
is to have a shared political conception that could secure the moral commitment
of all.16 Yet other justificatory liberals, including Gaus, claim that what is nec-
essary is convergence on certain principles of governance, rather than on any
particular reasons for adopting such principles (2011, 283–292). If we require
more than that, we would not be showing enough respect for some citizens who
are deeply committed to their comprehensive views, and no practical purpose
is served by the project of seeking to secure consensus on a common justifica-
tion for such principles. All we need to agree on is what principles or rules to
implement, not on the reasons for implementing them.
Most authors adopting either of these two versions of justificatory liberal-
ism believe that the regulative principles that would be agreed upon by agents
committed to seeking impartial principles of justice, and not their own self-
interested goals, will validate an expansive conception of the liberal state. Gaus
argues, however, that justificatory liberalism favors classical liberalism, and not
the egalitarian, modern forms that are usually associated with it.
Gaus’s particular articulation of justificatory liberalism starts from rather
uncontroversial premises. He takes as his starting point the supposition that
we conceive of ourselves and others as free and equal, in the sense that no one
has a natural or innate right to command others or to impose obligations on
them. Each of us has a fundamental claim to validate the obligations and duties
that are placed upon us (2007, 89–90; 2010, 234). Gaus claims that if we take
these premises seriously, we would appreciate how deeply problematic the use
of force by the state is. For such a force to be justified, we must show how each
forcible imposition can be accepted by each individual’s own reasons. This is
what Gaus would call a ‘public justification’, and it is the only way in which
such imposition would not fail to treat each individual as free and equal. Gaus
does not claim that this validation by others is the same as their actual consent.
Individuals can withhold consent for a variety of reasons (2007, 91–92). What
15 Justificatory liberalism has also been called ‘contractualism’, as distinct from the rational-bargain
based ‘contractarianism’.
16 See, for example, Audi 2000 and Qoung 2011.

34 Nicolás Maloberti
matters is not what they would actually say, but what they would say if they
were reasonable. If qua reasonable agents, the citizens would endorse the law
and its penalties, then the citizens can be seen as the genuine legislators. Their
will is not ignored.
Gaus believes, along with all liberals, that there is a presumption in favor
of liberty and against coercion (2010, 238–239), or, in other words, a right not
to be coerced (2011, 484). As understood by Gaus, however, this presumption or
right does not yield any definitive conclusion. Importantly, it does not imply that
there is a goal to reduce or minimize coercion (2011, 485). It merely states that
interferences with liberty require justification in a way in which non-interfering
actions do not. Thus the onus of justification is on the state for the use of force
and coercive threats against its citizens. Gaus claims that this onus can be met
with respect to each coercive law only if each and every reasonable citizen has
a conclusive reason to accept such a law, that is, a reason to accept it over the
alternatives, as binding on all (2010, 245–246).
Naturally, a major issue within justificatory liberalism is how to specify the
‘reasonableness’ of the citizens. Pure self-interest, hate, and spite are basically
ruled out as acceptable motives. The idealized citizens do not make manifestly
invalid inferences either, and they draw on appropriate and relevant values as
well as on sound empirical claims. One could propose an idealization in such a
way that citizens would all agree on certain substantive theses. Gaus believes,
however, that doing so will defeat the very purpose of this approach, which is to
recognize the inevitability of significant diversity and disagreement in modern,
liberal societies (2010, 246; 2011, 276–277). At the appropriate level of ideal-
ization, reasonable citizens will not endorse obviously objectionable views, such
as racism, or deeply implausible ones, such as radical versions of pacifism. But
they would not share the same view on what is ultimately valuable, and thus
the reasons that they would advance for endorsing or rejecting a law will differ.
It is important to note that in Gaus’s view, the truth of any given moral and
political doctrine is irrelevant (2003, 154). The important question is whether a
political doctrine provides a basis that cannot be reasonably rejected. A doctrine
can be true and still fail to qualify as the doctrine to be implemented, for others
might be able to reasonably reject it. In this particular sense, Gaus would agree
with Den Uyl and Rasmussen that the justified political order cannot be under-
stood as the institutionalization of morality, not even of the part of morality that
is concerned with enforceable duties of justice. In Den Uyl and Rasmussen’s
theory, politics deals with a specific problem, that of creating an institutional
environment in which it is possible for all individuals to flourish. In Gaus’s the-
ory, politics also deals with a specific problem, that of creating an institutional
environment that all reasonable individuals could endorse. While Den Uyl and
Rasmussen argue, however, that the correct conception of human flourishing es-
tablishes the need for liberalism, Gaus argues that such a need is established
by the fact that as reasonable agents we could not agree, among other things, on
what the correct conception of human flourishing is.

New Approaches to Classical Liberalism 35
Gaus claims that it is a common mistake within justificatory liberalism to
not be clear about the option set (although this is not true in the case of Rawls).
The question is not merely whether particular legislative proposals will be rea-
sonably rejectable or not. The question is whether particular legislative propos-
als will be reasonably rejectable or not in relation to other options (2010, 248;
2011, 268–269). Thus, we should suppose that after consulting their evalua-
tive standards, and their plausible conceptions regarding human interactions,
each reasonable citizen would be able to rank common legislative proposals or
political systems more generally. We would expect deep disagreement in those
rankings, given individual differences in evaluative and empirical judgments.
This does not mean, however, that we could not a priori eliminate some of the
proposals. All proposals that, from any reasonable perspective, will not be bet-
ter than no law at all will have to be eliminated from the eligible set. This is
connected to the presumption in favor of liberty. Furthermore, all proposals that
are better than no law at all, but are strictly dominated in terms of Pareto, that
is, all proposals that no one prefers over at least some other proposal, can also
be eliminated from the eligible set.
Gaus believes that “the total absence of a coercive state is impartially demon-
strably worse than a limited state that enforces personal rights and some sys-
tem of property rights” (2003, 156). In other words, anarchist claims denying the
very need for coercion “cannot block a public justification” (2003, 156). This is so
because “those who reject all coercive states on the grounds that, in the absence
of the state, people would all voluntarily do the right thing and contribute to
the public welfare are making claims that fly in the face of everything we know
about human psychology and collective action problems” (2003, 157). Thus, for
the appropriate idealization, or in Gaus’s terminology, for the “Members of the
Public”, anarchy is strictly dominated in terms of Pareto and thus eliminated
from the eligible set. In other words, all reasonable citizens have a conclusive
reason to accept the state over the alternative constituted by the non-existence
of the state.
All reasonable citizens will also agree with granting persons rights to bodily
integrity, freedom of association, and freedom of conscience and speech. Propos-
als to the contrary are clearly disrespectful of the freedom and equality of all
citizens, and thus will not be included in the eligible set. Furthermore, Gaus
claims that there is a compelling case for holding that only regimes that qualify
as representative democracies will comprise the eligible set of possible political
systems. This is because “only law-making procedures that are widely respon-
sive to the judgments of the citizens are reliable protectors of basic individuals
rights” (2011, 452).
Gaus also thinks that typical perfectionist or paternalistic policies that could
only be understood as efforts “to make others more perfect in our own eyes”
will have no place. Reasonable citizens will disagree on such evaluative consid-
erations, and thus those who would be coerced by any particular perfectionist
policies proposed will prefer not to have a policy at all. While it is true that all
reasonable citizens might regard particular goods as valuable, such as health

36 Nicolás Maloberti
and safety, for example, the same cannot be say of rankings or justifications of
trade-offs between them. This is a point Gaus believes is not adequately noted
among justificatory liberals who tend to believe that the fact that all reasonable
citizens might agree on a list of ‘primary goods’ implies that the state needs to
guarantee access to such goods. Gaus claims that our main disagreements about
the good are not primarily about what is of value. Rather, they are about the
relative importance of value (2003, 157; 2007, 96). So “even if everybody agrees
that smoking causes cancer, rational people clearly do disagree about whether
the pleasures are worth the risk of death. Given that rational people weight the
relative values of pleasure and safety differently, coercive acts that can only be
justified on the grounds that the pleasure does not outweigh the risk to health
fail to provide a neutral case [. . .] and without that, no state policies discourag-
ing smoking will be justified.” (2003, 158) Thus, according to Gaus, adherence to
the justificatory model, and its commitment to respecting all reasonable views,
has very definitive implications for the rejection of paternalistic or perfectionist
rationales of intervention.17
The issue of whether this liberal state defended by Gaus on public justifica-
tory grounds must be a classical liberal state or a modern welfare state is more
complex. It is not hard to see how some system of property rights will be pre-
ferred by all reasonable citizens over a system with no property rights. This
is because it is clear to all reasonable citizens how a distinction between “mine
and thine” is necessary for peaceful and cooperative social life (2003, 159). For
this reason, having a system of property rights will not be reasonably rejectable
against the alternative constituted by the lack of such rights. A system of com-
mon ownership, where no exclusion is allowed, will be strictly dominated in
terms of Pareto. The problem, however, is that there are many different pos-
sibilities regarding how property rights should be delineated. Is there a public
justification for selecting one system among the many? In particular, is there
a public justification for favoring a classical liberal system of strong property
rights that precludes both extensive redistributive and regulatory policies?
Gaus notes that there is an “order of justification” that is canonical within the
liberal tradition. Liberties having to do with political freedom and the integrity
of the person are more basic or primary than economic liberties, or general is-
sues related to the scheme of economic organization (2010, 250–251). Reason-
able citizens will thus first establish the justification for the former over the
latter. As already mentioned, since the idealized versions of the citizens are
taken to endorse reasonable moral views and a presumption for liberty, there is
a conclusive reason for every such member to endorse political regimes that offer
a high probability of providing strong protection for civil rights, such as freedom
of expression, freedom of association, rule of law, and personal rights.
Rawls had argued that reasonable agents will not consider, among the eligi-
ble set, economic arrangements such as state socialism, welfare state capitalism,
17 Gaus had also claimed that the justificatory model might preclude most contemporary legislation
(2003, 160). In his latest writings, however, he seems to be less radical in his interpretation of the
implications of his model for public policy (2011, 529–545).

New Approaches to Classical Liberalism 37
and laissez-faire versions of liberalism. According to Rawls, these three kinds
of social organization are deficient. Basically, the alleged problem with all these
regimes is that they do not protect the fair value of political rights. In the case
of capitalist systems, this is because the large inequalities of wealth that they
allow endanger the worth of the political liberty of the least advantaged citi-
zens (1996, 329; 1999, 242). For Rawls, the two options that will be regarded as
included in the eligible set are market socialism and “property owning democ-
racy”, where the latter requires a “distributive branch of government” whose
task is to preserve and approximate justice in distributive shares and to pre-
vent the concentration of power detrimental to the fair value of political liberty
and fair equality of opportunity.
Gaus, however, regards these claims by Rawls as extremely implausible and
perplexing. All of the available empirical evidence, after all, indicates that all
versions of socialism are deeply deficient in securing basic liberties (2010, 251–
255).18 If the reasonable deliberators care deeply about basic liberties, they
would not include socialist regimes among the eligible set. Those regimes would
be dominated by the capitalist alternatives. Gaus goes farther than pointing out
that the capitalist, rather than the socialist alternatives, must be included in the
eligible set. He claims that if we endorse the justificatory model, the justification
of property owning democracy and welfare state capitalism is more difficult to
achieve than the justification of a classical liberal regime.
Gaus believes that the justificatory model favors classical liberalism because
classical liberals, who are to be found among the set of reasonable citizens,
will tend to consider that the cost of coercion involved in greater redistribu-
tive states will end up outweighing the benefits of such programs (according to
their own conception of value) sooner than egalitarians will (2010, 266–269).19
Gaus claims that even if we acknowledge that reasonable people might disagree
about the ordering of the proposals from least to most coercive, classical liberals’
judgments of the range of the laws in which the benefits of coercion outweigh
the costs are still decisive. This is because the limits of the eligible set are still
defined by them, since they are the ones who see the least benefits and the most
18 As perplexing as those claims made by Rawls are, it is also perplexing that they are not usually
seen in such a way within contemporary political philosophy. As Gaus notes: “Rawls can say,
without evoking much dissent, that market socialism, which has been institutionalized only by
General Tito’s repressive Yugoslav state, is within the class of acceptable regimes partly because
it protects the value of political liberties, whereas a welfare state such as the United Kingdom,
which probably protects political rights as well as any regime in history, is clearly unjust because
it fails to protect the fair value of political rights.” (2011, 528–529)
19 It is important to note, however, that Gaus’s argument does not rely on assuming that the rejection
of socialism entails a regime of private property with no extensive redistribution of wealth, in the
sense that at this point classical liberals “will rank few if any redistributive laws as better than
no laws at all, and so such laws will be excluded from the eligible set” (2011, 521). The rejection
of socialism merely favors some system of private property, and it is the shape of such a system
that must be decided. We cannot assume that a system of private property with no redistribution
has some sort of priority over systems of private property with redistribution, such that we would
take it as our baseline, and let reasonable citizens veto proposals for redistribution. This would
be as unjustifiable as taking a system of property rights with redistribution as our baseline, and
letting reasonable citizens veto all proposals for reducing redistribution.

38 Nicolás Maloberti
costs of coercion. Due to the reasonableness constraint, egalitarians could not
claim that a classical liberal state does not outweigh the cost of coercion, and
that only an extensive redistributive state will (2010, 271–273). This is because
such a claim would imply the implausible view that while a redistributive state
is better than anarchy, anarchy is better than a classical liberal state.
It is important to note, however, that classical liberals do not have the abil-
ity to impose what they regard as the optimal system. Gaus’s argument does
not justify a classical liberal order. It holds, merely, that there is a classical lib-
eral ‘tilt’. All those proposals that classical liberals regards as ‘too coercive’ in
relation to the benefits they yield are eliminated from the eligible set. Within
the eligible set, however, there will be many legislative proposals that classical
liberals would not prefer when compared to their own proposals, but they would
prefer them when compared to not having any law at all. From all the propos-
als that compose the eligible set, the ones that are ultimately implemented are
those that are chosen by democratic procedures (the adoption of which is also
justified by the same sort of argumentative method).
As it was the case with Den Uyl and Rasmussen’s theory, this exposition of
Gaus’s theory is highly simplified. But the nature of the argumentative strategy
should be clear, and the main concerns one might have about Gaus’s theory of
classical liberalism seem to arise directly from the nature of his argumentative
strategy.
In assessing Den Uyl and Rasmussen’s theory, it was suggested that liberal
perfectionism might be unable to capture a basic classical liberal thought. The
thought is that people should not be forcibly precluded from acting in certain
ways, even if by doing so we could effectively prevent them from acting against
their own interests. Gaus’s approach might be incapable of capturing another
basic classical liberal thought. In this case, the thought is that economic liberties
are as fundamental as any others, and that their justification should not rely on
the collective benefits that they are supposed to generate.
For classical liberals, occupational freedom, the capacity to save and to invest
in projects individuals regard as worthwhile, and the ability to exchange their
property in their own terms with other consenting adults are not mere auxil-
iary liberties. Indeed, these liberties might be extremely important in securing
political liberties. It is not an exaggeration, however, to suggest that classical
liberals might regard economic liberties as more important than political lib-
erties, insofar as they regard the value of the latter as merely instrumental.
Political liberties are extremely important for classical liberals, but their impor-
tance derives from the need to constrain government and protect the spheres of
private life. To a certain extent, Gaus recognizes this priority relation when it
comes to personal liberties, such as those involved in freedom of association and
freedom of expression. But for classical liberals, the economic arena is simply
one area in which these basic freedoms are exercised, and it is perhaps the most
important one or at least as important as any other. After all, it is quite im-
plausible to believe that our freedom to form some type of civil association, such
as a walking club, deserves some form of priority over our freedom to associate

New Approaches to Classical Liberalism 39
with others to form a commercial enterprise, and provide goods and services that
other individuals might want to acquire.
By adopting the canonical order of justification of the modern liberal tradi-
tion, according to which economic liberties should be granted only to the extent
that they do not upset some desired distributive pattern, Gaus’s view might not
be able to capture the classical liberal concern for the priority and fundamen-
tal value of individuals’ private spheres in all its force. Admittedly, reasonable
disagreement might exist on this issue, and Gaus’s approach is motivated by
the recognition of the normative constraints that arise from it. Given the cir-
cumstance of the time, politics might indeed call for compromise. It might be a
mistake, however, to demand such a thing from political philosophy. After all,
we are grateful to past liberal political philosophers for articulating conceptions
of individual liberty that are crucial in determining what contemporary polit-
ical compromises are mainly about. If classical liberalism’s insistence on the
fundamental importance of economic liberties is lost in the project of articulat-
ing a political philosophy that no reasonable citizen could reject, this in itself
might constitute a powerful case against undertaking such a project. Gaus’s de-
fense of the basic freedoms of association, expression, and personal integrity, on
the ground that all reasonable citizens will endorse them, requires extremely
little consideration in his overall argument. This is because we all now share
certain very basic moral and political commitments that people did not share
less than a hundred years ago, when many individuals were excluded from the
protection that such freedoms entail. If we are committed to the value of indi-
vidual sovereignty, it is only natural to motivate our intellectual efforts by the
expectation that at some point in time a similar outcome will obtain in the case
of economic liberty. Yet such an expectation might be diminished in important
ways when political philosophy holds that assessing the truth of different polit-
ical doctrines is not among its main concerns.
4. Classical Liberalism as a Theory of Authority:
Kukathas’s Liberal Archipelago
Chandran Kukathas takes his theory, as formulated in The Liberal Archipelago
(2003), to be deeply shaped by the circumstances of the second half of the twen-
tieth century. He believes that the problem that contemporary political philos-
ophy faces is that of “coping with diversity in a world in which particularity or
difference or separateness is being reasserted” (2). Kukathas claims that in re-
cent years political philosophy has generally begun “with the assumption that
the nation-state is the appropriate starting point for reflection on the political
order” (257). Much of that reflection is concerned with “how diversity can be
dealt with in a closed society, so that it does not compromise the unity of the
society as a whole” (257). According to Kukathas, this sort of view “expresses
a wish for a degree of social unity which is simply inconsistent with the extent
of diversity, mobility, and disagreement in the modern world” (258). Kukathas

40 Nicolás Maloberti
thinks that such a degree of unity can certainly be achieved. But the price is
high. It could only be achieved “by suppressing diversity, or reducing freedom of
movement, or stifling dissent” (258).
Political philosophers such as Rawls recognize the importance of diversity.
Rawls thinks, however, that social cooperation in the face of diversity is likely to
be maintained only if the society is governed by a shared conception of justice,
characterized by an overlapping consensus. Gaus believes that Rawls’s approach
does not really recognize the significance of diversity, since it is assumed that
reasonable agents will be able to share the same sort of reasons regarding what
a just society looks like. But it is the very subject of justice over which there
is much dispute and conflict in a world of moral and cultural diversity, and our
political philosophy should recognize this fact. Kukathas agrees. The attempt
to bring our diverse ways of thinking into harmony by appealing only to rea-
sons that we can all share is a mistake. Yet, in Kukathas’s eyes, Gaus’s theory
would still fall significantly short of the ideal we should seek, since, at the end
of the day, the rules that all reasonable citizens could endorse from their own
respective reasons imply that many cannot live fully according to what their
conscience dictates. Kukathas does not think that political philosophy should
seek to achieve any sort of social unity through the elaboration of rules that we
all can embrace. If we are genuinely concerned about diversity, diversity must
prevail. People should have the real freedom to live by their own lights.
According to Kukathas, toleration is the fundamental value of liberalism.
At the core of this liberal ideal of toleration lies the conviction that individuals
should not be forced to act against conscience, that is, to act in ways that they
consider wrong (25). Conscience is, according to Kukathas, the most important
source of human motivation. This is not because conscience always overcomes
other motives such as self-interest. It is because “conscience is what not only
guides us (for the most part), but what we think should guide us” (48). This
motivation is what makes us distinctively human, and what structures and gov-
erns human life more profoundly than any other motivation. We believe that
transgressions to our own moral sense require justification, in a way that trans-
gressions to our own mere self-interest do not, for example. “What humans find
hardest to endure is the anguish that comes with acting unconscionable.” (53)
Yet Kukathas does not claim that we act right because it causes less suffering.
He claims that “acting rightly causes less suffering because we value it” (54).
We attach the highest value to acting rightly, even if we often fail to act in such
a way. We might disagree on what is right, yet the interest in acting rightly is
an interest that we all share. Kukathas goes as far as claiming, perhaps not
implausibly, that it is the “sine qua non of human flourishing” (56).
Kukathas does not think, contrary to many liberal theorists, that individuals’
fundamental interest lies in forming, revising, and rationally pursuing a concep-
tion of the good. The capacity to question our own beliefs and ends is not what
is fundamental in Kukathas’s view. The “unexamined life may well be worth
living” (56). Kukathas argues that it is a mistake “[t]o think that our interest in
being able to assess and revise our ends is more important than our pursuit of

New Approaches to Classical Liberalism 41
the ends themselves” (60). He claims that the liberal opposition to compulsion
does not need to be understood as an endorsement of reflective choice, since it
is “possible for the unchosen life to be regarded by the individual living it as
worthwhile, even if it is not possible for the compelled life to be so regarded”
(61). A life can be good even if it is not deliberatively chosen. But it cannot be
good if “a person finds he can, in conscience, only reject” it (64).
Kukathas thinks that the usual question that political philosophers pose to
themselves, that is, the question of the rights, liberties, duties, entitlements,
and obligations that individuals owe to each other, is the wrong question to ask.
Given the significance of diversity, we should rather ask: who should have the
authority to act? For this reason, Kukathas claims that “a liberal society will be
one in which politics is given priority over morality” (19). The task of political
philosophy is not to present an account of the demands of justice, but rather
to present the way in which we should deal with the fact that people hold al-
ternative conceptions of what justice demands. Liberalism, in Kukathas’s view,
does not identify a set of values and moral standards by which any community
described by that name must abide. It identifies principles by which different
moral standards may be allowed to exist. By existence, however, Kukathas does
not merely mean the possibility of appealing to them. He means, rather, the
possibility of setting institutions and rules that conform to such standards. So-
ciety does not have the sort of moral cohesion that many contemporary political
philosophers, including those who recognize the importance of disagreement,
such as Gaus, assume it can have. Without owing their allegiance to any partic-
ular interest, political philosophy should look at the problem of how the plurality
of interests, often competing, can be accommodated. This understanding of po-
litical philosophy’s role is analogous to Den Uyl and Rasmussen’s, but only in
form. In their theory, the plurality we need to be concerned with is that of the
forms of human flourishing. In Kukathas’s theory, it is the plurality of individu-
als’ conceptions regarding what is right or just.
It is perhaps important to note that Kukathas does not endorse moral rela-
tivism. Neither does he offer a theory lacking in moral commitments. He offers,
rather, a basic or minimalist moral commitment to a human interest that he
believes all persons have sufficient reason to accept: an interest in not being
forced to act against their conscience. Kukathas claims that “the only thing
that can be asked equally of all with respect to any [. . . ] set of ideas or behav-
iors is toleration. . . ”, where toleration is understood in undemanding terms as
“resigned acceptance” (24). In this sense, toleration does not require respect,
empathy, admiration, concern, dialogue, or understanding. It merely requires
coexistence. Also, Kukathas does not claim that liberalism is about the protec-
tion of diversity, as is implied by William Galston’s similar understanding of lib-
eralism (1995). Galston favors an understanding of liberalism that is linked to
the historical impulse of what he calls the Reformation Project, in contrast to the
understanding of liberalism that he links to the Enlightenment Project, with its
emphasis on the valorization of choice. Although similar in its fundamental con-
cerns, Kukathas’s theory does not recognize diversity as a fundamental value.

42 Nicolás Maloberti
For Kukathas, diversity is the source of the problem to which liberalism offers a
solution (29). That solution is fundamentally linked to freedom of association.
It is individuals’ freedom to associate and dissociate with others that respects
their fundamental interest in not being forced to act against their conscience.
Authority is always needed to settle conflicts that cannot be resolved by means
short of resorting to force. Yet, according to Kukathas, there is never a need
to force anybody to accept a particular authority over others. A genuinely lib-
eral society, therefore, must accommodate or tolerate the multiple authorities
that individuals freely decide to create by exercising their freedom to associate
and dissociate. The only thing a liberal society should not recognize is an as-
sociation’s denials of their members’ right to exit. Thus, “a society is a liberal
society to the extent it is willing to tolerate the multiplication of authorities, in-
cluding authorities which seek to disentangle themselves more thoroughly from
the wider society—provided they are prepared to bear the costs this invariably
involves” (27). This is why Kukathas appeals to the metaphor of an archipelago.
The liberal order is an archipelago constituted of “different communities op-
erating in a sea of mutual toleration” (8). Within the liberal archipelago, all
groups are allowed to live by their different moral beliefs. The only requirement
that they must recognize is that “no group has the right to compel anyone to
become or to remain, a member” (75). All that is necessary as evidence of the
recognition of the association’s authority over an individual is the individual’s
election not to leave. Thus “disparate and conflicting standards of morality and
justice co-exist”, and individuals are free to associate with one another and to
live by the moral standards they can in good conscience accept (76). Everybody
is free to refuse to live among those whose moral standards they cannot abide.
The good society is one “in which none would be required to live in groups or in
associations (under terms) they reject” (93). Thus, the right to exit is the fun-
damental right. It is “an inalienable right, and one which holds regardless of
whether the community recognizes it as such. It would also be the individual’s
only fundamental right, all other rights being either derivative of this right, or
rights granted by the community.” (96) This implies that the terms under which
each community or association is governed could impose all sorts of restrictions
on the individual liberty of its members, as long as no restrictions are imposed
on the liberty to exit.
This focus on the importance of individuals’ rights to form and live in commu-
nities, and to be guided by the rules that such communities choose to enforce,
should not, according to Kukathas, lead us to recognize groups as holders of
special rights or privileges. Groups are not “undifferentiated wholes but asso-
ciations of individuals with interests that differ to varying degrees” (88). The
identity of any given group is the product of individuals’ decisions and choices,
and the variability and mutability of the various forms of human associations
reflects that. Individuals’ right to exit cannot be infringed upon, even if it is nec-
essary for the preservation of the association. The individual, however, does not
have a special protection either with regard to his status in the association. In-
dividuals’ inalienable right to leave any association or community to which they

New Approaches to Classical Liberalism 43
belong does not entail that the individual has “any fundamental claim upon oth-
ers to ensure that he has the capacity to join a particular group or community,
to remain within that group, or to leave it” (97).
Kukathas recognizes that, in some cases, the cost and risks involved in ex-
iting a community would be high. According to Kukathas, this does not imply
that those individuals are unfree to leave (107–108). Kukathas also recognizes
that, particularly in associations into which people are born, “individuals are
conditioned (or socialized) into accepting their lot” and the principle of freedom
of association “does not protect [them] from being conditioned (or educated) to
have preferences which make them little more than accomplices in their sub-
ordination to the norms of their societies” (109). But for Kukathas, “a person’s
preferences have no bearing on whether or not he is free” (109). All that mat-
ters for freedom is whether individuals can act on their preferences, and not
what preferences they have, or how they have formed them. Kukathas’s prior
rejection of the characteristic liberal endorsement of autonomy, or reflective and
deliberate choice as an integral part of a good life, is relevant here.
One might worry that Kukathas’s understanding of the right to exit is quite
minimal. If acting according to conscience is so important, we might worry that
associations could gratuitously increase the cost of exit so as to discourage dis-
senters to act according to their conscience. We might want to conclude that the
group should then provide opportunities for dissent. Kukathas, however, would
reject such a claim. For it is not only the conscience of the dissenters that is at
stake. Forcing the other members to provide opportunities for dissent will be
equivalent to forcing them to act according to what they think is wrong. Facing
this inevitable conflict between what their respective conscience dictates, each
party should be free to disengage from the other, for “it cannot be a solution to
the conflict to say that one side must conform to the wishes of the other when no
compromise is to be found” (95). We should only advocate their respective right
to go their separate ways (116).
A natural understanding of Kukathas’s theory is one in which the state is
simply in charge of protecting individuals’ rights to association and enforcing
individuals’ rights to exit. Yet it is not entirely clear if this is indeed what
Kukathas claims. In some passages, the state itself is seen merely as one among
the many different associations. He claims, “the liberal archipelago is a society
of societies which is neither the creation nor the object of control of any single
authority, though it is a form of order in which authorities function under laws
which are themselves beyond the reach of any singular power” (9). He claims
that the “the principles of a free society describe not a hierarchy of superior and
subordinate authorities but an archipelago of competing and overlapping juris-
dictions” (4). The correct model, Kukathas argues, is the international society,
“a society of multiple authorities operating under a de facto regime of mutual
toleration” (27), and an “unmanaged” archipelago (29). He also says that “polit-
ical society is [. . . ] no more than one among other associations; its basis is the
willingness of its members to continue to associate under the terms which define

44 Nicolás Maloberti
it. While it is an ‘association of associations’, it is not the only such association;
it does not subsume all other associations.” (75)
The analogy to the international society is helpful. Yet there is no one in
charge of securing individuals’ right to exit. So, despite passages that would
seem to indicate something different, perhaps the best interpretation of
Kukathas’s theory of the state is one in which indeed its role is to protect and
secure such an inalienable right to exit. He claims, after all, that the role of the
state is to serve as an umpire, by preserving the order in which the many com-
munities and associations coexist (212). Despite these doubts regarding what
exactly the positive role of the state is, there are no doubts that Kukathas re-
jects the legitimacy of most functions of the contemporary state. He claims that
it is not part of the state’s duty “to make society more healthy, or noble, or equal
or more just. It is not for it to decide which ways of life are to survive and which
die out; which traditions are to prevail and which to disappear.” (213) Further-
more, Kukathas explicitly rejects all redistributive programs of the state, since
he claims that “the pursuit of equality can only come at the cost of the suppres-
sion of diversity” (215). This is because “groups display a diversity of attitudes
to wealth (what it is and how it is distributed), to status, to income, to choice, to
opportunity, and generally to well-being” (219). Moreover, among such groups,
“understandings of what things may be properly be made the objects of distri-
bution differ quite radically” (224). Thus, since equality conflicts with diversity,
we should reject equality. This is because diversity is a fundamental feature
of the human condition, and any attempt to suppress it, “will require the dis-
ruption of individual lives, and a denial of people’s wish to live by their own
lights—according to conscience” (215).
The basic thought behind Kukathas’s theory is compelling, and it is funda-
mentally related to the very origins of liberalism: “people who differ should be
able to live in different ways.” (98) Modern liberal societies are characterized
by disagreement on fundamental issues. Agreement should be sought after to
the extent that it is necessary for coexistence. Kukathas claims that the sort
of agreement required for coexistence is minimal: we should agree to let others
live according to the standards that we ourselves cannot agree to live by. We
should simply agree to part company. Only a political order guaranteeing abso-
lute freedom of association conforms to what Kukathas regards as the minimal
moral demand that we should all observe: that of letting others live according to
their own conception of what is right, even if we find their beliefs and behavior
to be morally objectionable.
We might think that, from a classical liberal point of view, there are few
grounds for rejecting Kukathas’s institutional proposal. Although Gaus seems
to defend a more expansive state than Den Uyl and Rasmussen do (Gaus seems
to endorse some form of minimal welfare rights), neither of their theories would
allow for any limitation on individuals’ freedom of association. This is also the
case if we adopt a more traditional Lockean perspective, such as that of Nozick
(1974). If there is something that all these theories share, it is their recogni-
tion of the importance of a robust system of personal and property rights, and

New Approaches to Classical Liberalism 45
a central element in such a system is the freedom to enter into any sort of vol-
untary agreement with other consenting adults. It is precisely the lack of such
a qualification on consenting adults in Kukathas’s theory that might generate
resistance among liberal theorists of all stripes.
Kukathas claims that the sort of toleration endorsed by Rawls, for example,
is not genuine, since whether and how far any practice will be tolerated is ul-
timately decided by its compatibility with a liberal conception of justice (121).
This is exemplified by Rawls’s endorsement of public education. Rawls argues
that children’s education should include knowledge of their constitutional and
civic rights. They should be told that liberty of conscience exists in their society.
As Kukathas points outs, in Rawls’s view, as well as in many liberals’ view, this
should be inculcated in children to ensure, for example, that “their continued
membership in a religious sect when they become of age is not based simply
on ignorance of their basic rights or fear of punishment for offences that do not
exist” (123). This, according to Kukathas, is unjustified since we must remain
agnostic regarding fundamental values, and not treat non-autonomy or non-
liberal modes of life as morally inferior. Furthermore, we should not presuppose
the existence of a common standpoint of morality. We should not understand
toleration “as something which arises as an issue [. . .] because of the possibility
of dissent [. . . ] from the values implicit in that common standpoint” (125). In
other words, illiberal minorities who do not teach liberal values to their children
should be truly tolerated, in the sense that they should be recognized as having
the right to teach their non-liberal values.
Galston has argued in a similar manner. The conclusions reached by
Kukathas regarding the scope of tolerance are, however, more radical than those
endorsed by Galston. Although Galston allows for wide parental rights when it
comes to the education of children, he recognizes that there are limits having
to do with the protection and promotion of the normal development of basic ca-
pacities, and with the requirements of “social rationality”, which is “the kind of
understanding needed to participate in the society, economy, and polity” (525).20
For Kukathas, however, “[i]f there is an ultimate authority [. . .] that determines
what ways are morally acceptable, liberalism is lost” (139).
The rejection of all forms of public education is not something that classical
liberals will necessarily oppose. Neither will they oppose wide parental rights in
general. There is a point, however, in which Kukathas’s emphasis on toleration
might become truly problematic, especially if we are genuinely concerned about
the individual right to liberty of all, and not merely of adults. Some communi-
ties might decide to deny their children blood transfusions in life-threatening
circumstances. Other communities might practice female genital mutilation on
all teenage girls. These practices present extremely challenging issues, in part
because they are associated with certain fundamental cultural or religious com-
mitments. But the implication of Kukathas’s theory is that whether or not such
practices are related to those commitments is irrelevant. As Brian Barry has
20 For Galston, the scope of permissible diversity is constrained by the imperatives of citizenship
(1995, 528).

46 Nicolás Maloberti
noted, if the rights groups have are not grounded on the particular cultural
claim that such groups could make, something Kukathas explicitly denies, then
all groups have a right of non-interference irrespective of whether what we re-
gard as terrible practices are tied to important commitments (2001, 145).
Kukathas’s response is ultimately based on two claims. The first one is that
it is not easy for individuals to arrogate to themselves the power to do entirely as
they wish with their children because “they will be bound by the norms or con-
ventions or the laws of the communities to which they belong—which might in
turn be shaped by requirements laid down by other associations of which these
groups are themselves members” (144). Yet Kukathas himself acknowledges
that “[i]t would not be wise to be ‘too sanguine about the benign consequences
of this. Some groups will always resist these pressures to conform’” (147). The
second claim is that “there is no warrant for assuming that authority will be
just—even if it succeeds in discerning what is just” (260). Kukathas claims that
the argument for state interference for the sake of protecting children “relies on
the assumption that the state will act rightly: it not only will not abuse its power
to intervene, but also will know when it is appropriate to intervene.” (147) Even
if social pressures are not always enough, Kukathas concludes that it is “less
dangerous than conferring greater powers upon the state on the assumption
that it can only do good” (147).
Regardless of how convincing Kukathas’s answer is, this particular issue
might illustrate a problem with grounding political philosophy on the claims
of conscience. Some members of society might believe that they have an obli-
gation to protect the basic rights of all children, given their special condition of
vulnerability. Other members of society might believe that they have a right
to perform hurtful practices on their own children. If this is so, how could an
appeal to conscience be able to adjudicate this conflict of views? It seems that
no matter what option we choose, some individuals will not be able to live ac-
cording to what their conscience demands. The difficulty is also present in the
case of property. Kukathas believes that the historical debate over freedom of
religion should be the paradigm for contemporary liberal political philosophy.
Contrary to the case of religion, however, discussions over the justice of alter-
native schemes of property are discussions over resources that cannot accom-
modate multiple and conflicting arrangements. So if individuals hold different
conceptions of ownership, such as Kukathas acknowledges they do, regardless of
what property distribution is enforced, the state will be forcing some individuals
to live contrary to their own conception of what is right.
A different implication of Kukathas’s theory might clash with the reforma-
tive aspirations of classical liberalism. Classical liberals are generally discon-
tent with the current political circumstances, since virtually all existing states
have extended their scope beyond their essential functions, with the correspond-
ing extension of taxing power. It is not clear, however, that Kukathas’s theory
could provide adequate grounds upon which to base a case against the typical
current political order characterized by extensive, rather than minimal, states.

New Approaches to Classical Liberalism 47
Kukathas emphasizes the fact that a liberal society is not one in which all
its members live according to liberal principles. It is, rather, one in which its
members have the freedom to choose how to live, where this freedom includes
living under non-liberal principles. Furthermore, individuals are assumed to ac-
cept the terms under which they live insofar as they decide to live under them,
while having the freedom to leave. It does not matter how costly the exercise of
such freedom could be. Individuals also lack a right to join associations against
the wishes of its current members. On what grounds, therefore, could citizens of
any nation other than some notorious exceptions, such as Cuba and North Ko-
rea, present a case against the legitimacy of the political order under which they
happen to live? As long as they are free to emigrate, Kukathas’s theory seems
to imply that they freely accept the terms by which they are governed, since the
cost of exercising that freedom is not relevant. We must recall that Kukathas
himself explicitly claims that the correct model for a liberal archipelago is the
international society. As already noted, no one is in charge of enforcing individ-
uals’ right to exit in the international society, but if we understand Kukathas’s
theory as the formulation of an standard of evaluation, the fact that the inter-
national society lacks that particular institutional mechanism of enforcement
does not imply that it does not satisfy the standard in question. In our time, the
majority of governments do not impose restrictions on emigration. The interna-
tional society composed of such governments would seem to count as a liberal
archipelago in Kukathas’s terms.
In another work Kukathas has argued against immigration restrictions, and
in favor of open borders (2004). But his argument on immigration does not rely
on his conscience-based theory of authority, and it is unclear whether the theory
formulated in The Liberal Archipelago has the potential to ground a rejection of
immigration restrictions. It needs to be clear, however, that the worry is not that
Kukathas’s theory does not imply the rejection of immigration restrictions. Al-
though there might be strong classical liberal reasons against such restrictions
(Maloberti 2011), this is a controversial area where reasonable disagreement
might exist. The worry is, rather, that Kukathas’s theory, despite its radical ap-
pearances, might have as its implication an endorsement of the political status
quo in which extensive, redistributive states are the norm rather than the excep-
tion. In such a status quo, countless individuals who truly value their personal
and economic liberties, but who were born in the wrong place, have no other
place to go. It would be an unfortunate implication of our political philosophy if
we could not recognize that individuals have, if not the right to enter other po-
litical communities, at least the ability to make a convincing case for why their
liberties should be respected in the political communities in which they happen
to live.
Kukathas’s theory, as was the case with Den Uyl and Rasmussen’s and
Gaus’s, might thus fail to articulate in a convincing manner a central classical
liberal concern. Insofar as these three theories present themselves as provid-
ing a philosophical understanding of classical liberalism, this alleged deficiency
would constitute a serious objection. In itself, however, it does not provide a

48 Nicolás Maloberti
conclusive reason to reject any such theories. This is because we might conclude
that one of these theories provides a better understanding of classical liberalism
than the available alternatives. If such is the case, we should be willing to revise
the status of the basic classical liberal thought that, allegedly, finds no proper
theoretical articulation in the theory in question. Although reaching such an
overarching judgment is beyond the scope of this essay, the value of these new
approaches must surely be recognized. For one thing, each of these theories in-
corporates concerns that are at the center of contemporary political philosophy
in general, and at the center of the contemporary debate regarding the founda-
tions of liberalism in particular. This is a very important development, since any
theoretical position denying all value to recent intellectual reflection will always
lack credibility. If incapable of reframing itself in light of new challenges and
concerns, a political doctrine is justly relegated to the confines of intellectual
history. The recent theories of Den Uyl and Rasmussen, Gaus, and Kukathas
illustrate that within political philosophy, classical liberalism is a genuine con-
temporary approach.
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