Content uploaded by Andreas Follesdal
Author content
All content in this area was uploaded by Andreas Follesdal on Jun 21, 2016
Content may be subject to copyright.
Electronic copy available at: http://ssrn.com/abstract=1931564
ANDREAS FOLLESDAL
20101208
_________________________________________________________________________________________
andreas.f@broadpark.no http://www.follesdal.net
The Distributive Justice of a Global
Basic Structure: A Category Mistake?
Politics, Philosophy and Economics, 2011, vol 10 (1): 46-65
Abstract
The present article explores ‘anti-cosmopolitan’ arguments, that shared institutions
above the state, such as there are, are not of a kind that support or give rise to
distributive claims beyond securing minimum needs. The upshot is to rebut certain
of these ‘anti-cosmopolitann’ arguments. Section 2 asks under which conditions
institutions are subject to distributive justice norms. That is, which sound reasons
support claims to a relative share of the benefits of institutions that exist and apply to
individuals? Such norms may require strict equality, Rawls’ Difference Principle, or
other constraints on inequality. Section 2 considers, and rejects, several arguments
why existing international institutions are not thought to meet these conditions.
Key words:
Basic Structure, Equality, Distributive Justice, Social Primary Goods, John Rawls,
Globalisation, institutions, Global distributive justice
About the author:
ANDREAS FOLLESDAL is Director of Research and Professor of Political
Philosophy at the Norwegian Centre for Human Rights, Faculty of Law, University
of Oslo. He acquired his PhD. in Philosophy from Harvard University 1991. His
research largely concerns political philosophy of Human Rights, globalisation and
the European Union, on such topics as distributive justice, federalism, minority
rights, deliberative democracy, subsidiarity, and European citizenship.
A wide range of international institutions allow foreigners to interact, with profound
consequences for them.
1
several authors have argued that while foreigners may have
claims to secure a certain minimum material level of well being, they have no further
claims to a relative share of the benefits of such interaction. That is, they have no
claims of distributive justice on their shared global institutions. The present article
1
I am grateful to participants at a PPE workshop in New Orleans February 2009, and to Tom Christiano and
Andrew Williams for further very helpful and constructive comments.
Electronic copy available at: http://ssrn.com/abstract=1931564
- 2 -
explores such ‘anti-cosmopolitan’ arguments, that shared institutions above the
state, such as there are, are not of a kind that support or give rise to distributive
claims beyond securing minimum needs. The upshot is to rebut certain of these ‘anti-
cosmopolitann’ arguments. The paper has two main parts. Section 2 asks under
which conditions institutions are subject to distributive justice norms. That is, which
sound reasons support claims to a relative share of the benefits of institutions that
exist and apply to individuals? Such norms may require strict equality, Rawls’
Difference Principle, or other constraints on inequality. Section 2 considers several
arguments why existing international institutions are not thought to meet these
conditions.
1.1 The contested issue
Several authors have argued that the tangled web of domestic and international
institutions is drastically unjust. They demand better government of the ‘global basic
structure’ (GBS), be it by global democratic arrangements (Archibugi, Held et al.
1998), by the recognition of international human rights obligations (Pogge 2008,
Caney 2005) , or both, with careful assessment of conflicts between these normative
standards (Gould 2004, Goodhart 2008). Many of these authors may be committed to
principles of political or economic equality among compatriots, but are reluctant to
urge similar claims to equal shares to benefits among persons globally. In particular,
they argue that other normative standards of justice are appropriate for this GBS than
for a domestic BS. Citizens and foreigners may have sound normative claims on the
international community that the GBS satisfies the minimum vital needs of all, e.g. in
the form of international obligations to secure certain human rights or to otherwise
reduce or remove extreme global poverty. But they have no further claims on shared
international institutions to equal or other relative distributive shares: there are no
limits on permissible global inequalities. Such views we may think of as ‘Anti-
Cosmopolitan; ’ they have been defended by several prominent authors (Rawls 1999,
38, 105; Freeman 2006, Blake 2001, Nagel 2005; cf Barry and Valentini 2009).
Typically, Nagel holds that “although absolute deprivation is an international
concern, relative deprivation is not.” (Nagel 2005, fn 11 p 126). Further egalitarian
norms should not regulate the GBS:
Egalitarian justice is a requirement on the internal political,
economic, and social structure of nation-states and cannot be
extrapolated to different contexts, which require different
standards. (Nagel 2005, 114-5)
These authors do not deny that the way the world is currently organized in a system
of states has distributional consequences, but that norms of distributive justice do not
apply. I shall argue that the reasons they offer are not convincing.
1.2 Neither a global difference principle, nor a unified global government
- 3 -
I assess these criticisms against a sort of cosmopolitanism with some salient features.
Firstly, it remains an open question what relative shares individuals can claim: the
cosmopolitanism need not insist on equal shares or a global difference principle. The
main point is that the principles of global distributive justice are “comparative
principles concerned not merely with how individuals fare or are treated in absolute
terms, but also in comparison with others.” (Abizadeh 2007). Secondly, this
cosmopolitanism is not committed to ‘institutional cosmopolitanism’ – that is,
whether the world order should predominantly have centralized institutions with
global scope in the form of a universal republic, rather than a multi-level, federal or
confederal legal order. The latter sorts of claims would proceed comparatively, to
determine which alternative allocations of legal power and authority are more likely
to secure the requisite standards of global distributive justice. An obvious objection
to a global centralised government is that it runs too high risks of turning into a
dictatorship, with catastrophic consequences for many individuals.
2 When are institutions subject to Principles of Distributive Justice?
In the following I explore what reasons John Rawls and others who draw on his
thoughts regard the ‘basic structure of society’ and why it is ‘a special case of the
problem of justice’. Rawls defines the ‘basic structure’ (BS) as the set of “major social
institutions.” They include “the political constitution and the principal economic and
social arrangements” (Rawls 1971, 6-7).
The basic structure is a public system of rules defining a
scheme of activities that leads men to act together so as to
produce a greater sum of benefits and assigns to each certain
recognized claims to a share in the proceeds. What a person
does depends upon what the public rules says he will be entitled
to, and what a person is entitled to depends on what he does.
(Rawls 1971, 84)
Rawls held that principles of justice for institutions are different from those for
individuals’ actions, and from those for private associations. Why is this so, and is
this set of domestic institutions different from those of international institutions and
regulations, so as to make principles of distributive justice applicable only for the
first but not the second?
2.1 Only when interaction is fair cooperation?
Some authors have argued that a focus on the BS entails that principles of
distributive justice only apply to institutions that facilitate not only interaction but
fair cooperation. If a BS is defined as one composed of a set of institutions that
engender fair terms of cooperation, there is obviously not a GBS – and indeed, hardly
any domestic BS. Thus Amartya Sen criticized Rawls’ theory for excluding disputes
among the intolerant from “the purview of the so-called political conception of
justice” Sen 1992, 77). More recently, Thomas Nagel has argued that demands of
- 4 -
distributive justice of the sort elaborated by John Rawls arise only under similar
conditions: only if the institutions subject individuals to norms, while regarding
those subjects as "putative joint authors of the coercively imposed system” (Nagel
2005, 128). This requirement has perverse counterintuitive implications, as noted by
Abizadeh: “The closer a tyrant's rule approaches pure slavery, the less it can be
criticized for being unjust.” (Abizadeh 2007, cf Cohen and Sabel 2006). In response to
this observation, I submit that the most plausible understanding of a BS to which
principles of distributive justice should apply, is not that only just such structures are
subject to such standards. The relevant requirement is rather that the “system of
social interaction could, at least in principle, become … a fair system of social
cooperation for mutual advantage.” (Abizadeh 2007, my emphasis).
2.2 Claims based on special features of institutions compared to other
subjects
This response of course begs an obvious question: what is it about institutions - and
about the set of institutions included in the BS in particular – that justify principles of
distibutive justice? Thus Liam Murphy asks whether special criteria are appropriate
to evaluate institutions generally, compared to other modes of distribution such as
individuals’ isolated action (Murphy 1999, 257).
One reason why some normative theories find this question pertinent might be if
they regard institutions only as instruments to implement certain duties, specifiable
and justified independent of our institutional relationships (Nagel 2005). For
instance, the main role of institutions may be to render our individual obligations of
mutual aid more effective, and leave us more room to carry out our other duties and
pursue our own projects. One such argument may be that of “Assigned
responsibility”: "special duties are devises whereby the moral community's general
duties get assigned to particular agents." (Goodin 1988, 678). The role of states in
particular is to divide the general responsibility we have toward everyone else:
“National boundaries simply visit upon those particular state agents special
responsibility for discharging those general obligations vis-a-vis those individuals
who happen to be their own citizens." (Goodin 1988, 681-82).
Some seem to hold that it is only such considerations that led John Rawls to argue for
taking the BS of society as a central subject matter. Thus Liam Murphy holds that
such institutions allow a distribution of moral labour: the BS of society secures
‘background justice’, leaving individuals free to pursue their own self interest,
economic and other, largely unrestrained (Murphy 1999, cf. Cohen 1997, 16; Julius
2003, 326-7). Such interpretations of Rawls have been criticized thoroughly (Pogge
2000, Scheffler 2006); inter alia because Rawls does not allow individuals to be
completely relieved of duties of justice in their private capacity. In the following we
explore other reasons to hold that the institutions of the BS have normative
implications on the claims individuals may hold against each other with regard to
the benefits of these institutions.
- 5 -
2.3 Institutions may help resolve coordination problems
Firstly, with Nagel, we may note that some institutions may help provide beneficial
conditions for interaction – such as property rights and contractual obligations
(Nagel 2005, 137). Such institutions increase our opportunity space, and hence
possibly our duties. Why is this?
Certain institutions may help participants resolve several collective action problems
(Murphy 1999, 253; Buchanan and Keohane 2006, 408; Pettit 2000, 110-13). In
particular, several institutions may address assurance problems among individuals
who are uncertain about the actions of others, and this may affect the content of their
moral duties.
Consider individuals who are motivated by what John Rawls called a Duty of Justice:
This duty has two parts: first, we are to comply with and to do
our share in just institutions when they exist and apply to us;
and second, we are to assist in the establishment of just
arrangements when they do not exist, at least when this can be
done with little cost to ourselves. (Rawls 1971, 334)
For citizens’ duty of justice to apply, and for them to have a political obligation to
obey existing rules, they must have good reason to believe that the rules are
normatively fair, and that they are generally complied with by others – thus Rawls
notes that even with a sense of justice,
compliance with a cooperative venture is predicated on the
belief that others will do their part, [so] citizens may be
tempted to avoid making a contribution when they believ, or
with reason suspect, that others are not making theirs. (Rawls
1971, 336)
Indeed, in the absence of near general compliance, there are no institutions to comply
with, since an institution only “exists at a certain time and place when the actions
specified by it are regularly carried out in accordance with a public understanding
that the system of rules defining the institution is to be followed.” (Rawls 1971, 56).
Institutions play several important roles to provide such assurance, including
(democratic) decision making, independent courts, monitoring of compliance, and
public enforcement eg by means of sanctions. If such institutions are in place, they
reduce the risks of free riding and other forms of partial compliance, and this may
plausibly affect the content of individuals’ duties compared to situations of partial
compliance or other circumstances of unjust institutions. This may be one reason for
agreeing with Nagel that the sanction mechanisms that states employ may make the
BS normatively significant (Nagel 2005). However, such sanctions may not always be
required.
Such arguments may help understand why institutions should be regulated by
special normative standards. But these coordination benefits do not suffice to
- 6 -
support claims that substantive principles of distributive justice apply to such
institutions.
2.4 Claims based on the special features of the basic structure
There are several reasons why authors following Rawls argue that the BS affects the
normative claims its subjects have on it and among themselves. One central premise
is that the BS is a subject that is a social construction: it could be otherwise, that is:
alternative BSs will allocate legal powers, benefits and burdens differently among its
subjects, and thus engender different distributions of such goods and bads. The
power to create and shape it is of great value to those who are able to so affect the
design of the BS.
2.4.1 Impact on individuals’ starting points, opportunities and capability sets
The BS has a large impact, in several ways. Firstly, Rawls and others note the
pervasive impact that the benefits of the BS have on individuals’ life chances. Even
taking due account of the fact of pluralism among citizens as to their conception of
the good life, the effects of the BS such as legal powers, career opportunities, income
and wealth -- all have profound effects on individuals’ well being.
2.4.2 Impact re aspirations, life plans
A second more profound and challenging form of impact of the BS is on individuals
conception of the good life, expectations and aspiration levels. This creates a further
normative challenge under pluralism: how should such structures affect preference
formation, when subjects partly for this reason will disagree about conceptions of the
good life?
2.4.3 The Basic Structure constitutes Social Primary Goods
A third aspect of the BS worth noting is that it creates new goods through
institutionalised cooperation. Thus Rawls specifies certain ‘Social Primary Goods,’
(SPG) as various legal powers and immunities:
mainly features of institutions, that is, basic rights and liberties,
institutional opportunities, and prerogatives of office and
position, along with income and wealth. (Rawls 1988).
These goods are important – hence the impact of the BS on individuals – yet they
illustrate that the BS does not only serve instrumental functions in allocating
independently existing duties among individuals: The question of how such goods
should be distributed only arises for such institutions that create them.
It is for this subject that distributive justice arises, according to Samuel Freeman:
Basic social institutions and legal norms that make economic
production, exchange, and use and consumption possible are
political products, one of the primary subjects of political
governance. It is not just fiscal policies, taxation, public goods
and welfare policies that are involved here; more basically it is
- 7 -
political decisions about the myriad property rules and
economic institutions that make these policies, and economic
and social cooperation as well, possible. A primary role for a
principle of distributive justice is to provide standards (ideally
to democratic citizens and their representatives) for designing,
assessing, and publicly justifying the many legal and economic
institutions that structure daily life. (Freeman 2006)
Even with this constitutive role of the BS, it still seems pertinent to ask whence the
force of egalitarian claims of principles of distributive justice, at least for a domestic
BS. Some further considerations merit attention.
2.4.4 Institutional division of labour:
One further reason to regard the BS as a special topic of justice is that it allows a
certain division of labour: Rawls explores
an institutional division of labor between the basic structure and
the rules applying directly to individuals and associations and to
be followed by them in particular transactions (Rawls 1993,
268-9)
Of concern here is the division that Samuel Scheffler calls the institutional division of
labour (Scheffler 2006). For our purposes it has two noteworthy features for our
purposes: the BS includes institutions that specify and allocate legal powers among
private parties and thus ‘govern the transactions and agreements between
individuals and associations” (Rawls 1993, 268).
Secondly, the BS helps resolve the challenge of securing the overall just distribution
of a complexity individual actions under conditions of interdependence. The indirect,
systemic and opaque effects of any individual action make it unlikely that even
individuals with a sense of justice can comprehend how they should act individually
in order to maintain a fair distribution of benefits and burdens - without some
institutions that regulate the pattern of interaction. Note that the claim is not that
such a division allows individuals to completely ignore considerations of justice in
their day to day life (pace Murphy 1999) but that they can pursue their individual
self-oriented ends fairly and more effectively by placing the main responsibility to
ensure background justice over time with the BS. Such arguments hold best under
conditions of ‘ideal theory’, when the individuals and associations can be sure that
the BS does indeed satisfy the principles of distributive justice over time. Again note
that such considerations are not sufficient to justify distributive principles of justice
that constrain permissible inequalities.
2.4.5 Coercion of a kind that must be normatively legitimate
One further aspect of the BS is that it is maintained with a particular form of state
coercion.
- 8 -
Agents or institutions with coercive power are often central subjects of arguments
about justice. One reason is surely that considerations of justice and legitimate rule
primarily arise for questions of how to regulate power and influence that is in
practice inescapable, or that otherwise subject some individuals to the arbitrary will
of others (Abizadeh 2007, Cavallero 2010). Such powers affect an individual in
potentially objectionable ways when the individual’s opportunity set is limited to a
problematic extent, or when she is subject to domination. Lack of coercion or the
opportunities of exit might in principle nullify any such claims, assuming that a
baseline of no coercion, or of exit, is normatively acceptable.
The BS involves an additional aspect of the use of coercion, insofar as this coercion is
claimed to be carried out ‘in the subjects’ name.’ Thus Nagel speaks of the state that
… given that it exercises sovereign power over its citizens and
in their name, those citizens have a duty of justice toward one
another through the legal, social, and economic institutions that
sovereign power makes possible. (Nagel 2005, 121)
I submit that the central claim involved in exercising power ‘in their name’ is that a
condition for the institutions to create political obligations among their subjects – that
they have a duty of justice to obey – the BS must satify certain principles of justice.
The political authorities and other citizens can expect each to obey, but only if the
institutions are fair. This seems to be the sense of ‘political community’ Nagel has in
mind when he holds that
We are required to accord equal status to anyone with whom we
are joined in a strong and coercively imposed political
community. (Nagel 2005, 134)
Nagel furthermore argues that such equal status renders certain inequalities
objectionable:
What is objectionable is that we should be fellow participants in
a collective enterprise of coercively imposed legal and political
institutions that generates such arbitrary inequalities (Nagel
2005, 128).
But why, may we ask, does ‘equal status’ also require equal shares of certain
benefits? One salient argument can draw on the constitutive role of the BS. For the
question of how SPGs should be distributed, a presumption of equal shares is
reasonable among persons regarded as free and equal. The reason is that these goods
are the products of joint cooperation, namely products of institutions that enjoy
willing, general compliance by citizens motivated by a duty of justice. The source of
SPGs as the joint product of institutionalised cooperation, combined with the social
fact that the BS that created and engenders their distribution could have engendered
different distributions, helps justify a prima facie claim to equal shares of these goods
- 9 -
when the subject is what principles should govern the BS of a society – a BS that is
legitimate, in the sense that subjects have a duty of justice to comply with its rules
and practices.
The upshot of these arguments is that there are reasons to agree that institutions in
general, and the BS of society in particular, should be held to different standards of
justice than other subjects, due to their pervasive impact on individuals life chances
and preference formation. The prima facie claim to equal shares or other principles of
distributive justice among those subject to a common BS are rendered plausible by the
fact that the goods subject to such principles are constituted by the shared practices,
and that subjects’ duty of justice should apply to the BS so as to create a political
obligation to comply.
We now turn to ask whether such considerations support principles of distributive
justice applied to such a GBS as there might be.
3 Is there a Global Basic Structure in the relevant sense?
3.1 Clarification: what if anything is the Global Basic Structure?
For clarification let us talk of a possible GBS as rules and institutions which structure
individuals’ actions and shared practices, and otherwise serves the functions of the
domestic BS as discussed above - wherever on the globe the individuals are. In our
present world order where states play prominent roles the alleged GBS includes at
least several domestic BSs, and possibly an international basic structure. Central
components of the international part of the present GBS are international laws and
treaties, and the courts, tribunals and other bodies they establish.
Of concern here are claims that the impact, source, means, or objectives of such
international laws, international institutions and other international public practices
are said to be so different in kind from domestic institutions as to make principles of
distributive justice inapplicable – leaving only requirements that the GBS as a whole
secure basic needs, somehow specified.
I shall challenge these claims. Note that the philosophically contested views accept
that states are economically or politically interdependent; few deny that international
rules of trade etc clearly have a causal impact (cf Freeman 2006). Rather, the
argument is that the combination of domestic and international institutions fails to
exhibit the normatively relevant aspects of a GBS. Impact on individuals is not
enough. Rather, the kinds of practices that international institutions are, and the goods
they help create, are argued to be normatively different from those of domestic BSs. In
the following I consider several arguments that states serve roles that remove grounds
for claims to global distributive justice.
3.2 Objection: the impact on individuals is predominantly that of intra-
state institutions rather than that of inter-state institutions.
- 10 -
One reason to dismiss or discount the effect of international institutions is that it is
largely the distributive impact of intra-state institutions that matter for individuals’
starting points, aspirations etc. International institutions only regulate some issue
areas, and what impact does occur is indirect. Effects are mediated by, and largely
the responsibility of, domestic authorities.
Consider two examples, concerning domestic components of global economic
inequalities, and inter-state variations of the effects of international economic
institutions.
The central basic capabilities measured by the Human Development Index (HDI) are
life expectancy, schooling and gross national income per capita. In all countries the
HDI of the population suffers as a result of unequal domestic distribution of health,
education and income. Research also shows that in several states and regions
domestic economic inequality has risen since the 1980s, with severe impacts on
citizens. such effects of domestic inequalities are much larger in Sub-Saharan Africa,
and tend to be lower in high HDI countries (UNDP 2010, eg ch 5). This is often due to
an increased gap between urban and rural populations, eg in China, India and
several other Asian nations ( Milanovic 2007, 40). Two central causal factors that
help explain domestic inequality seem to be state capacity and domestic political will, eg
to ensure a well regulated market economy and redistributive taxation policies.
Secondly, consider the differences in income, and in economic inequality, among
states. Exact measures of the relative impact of inter-state inequality and intra-state
inequality are difficult and contested; Milanovic argues that “Some 70 per cent of
global inequality is due to differences in countries’ mean incomes.” (Milanovic 2007,
62-63). States are also affected by the international institutions in drastically different
ways. In many states the visible impact of international institutions is great, for
instance how the conditionalities of the IMF affect the political opportunity space.
But this is more true of some domestic governments than of others. Likewise,
countries with higher export-to-GDP ratios are more heavily dependent on regional
or global markets, - and hence more vulnerable to WTO rules that regulate
protectionist measures etc.
Factors that help explain inter-state inequality and dependence are contested, and
include neo-liberal trade regimes, modernization processes, dependency theories etc.
Some of these are at least partly a matter of domestic political choices about
economic policies, export strategies etc.
Such economic and political facts about international and domestic polices and
inequalities seem to support the position that individuals have little in the way of
distributive claims on international institutions. Instead, it appears that such claims
should mainly be addressed to the domestic BS and those domestic elites who shape
it and who decide on the state’s external relations.
- 11 -
In response, I agree that it is clear that states differ both in their political and
economic opportunity spaces domestically and internationally, and in how the
domestic authorities decide to use these opportunities. The details of the domestic BS
have great impact on individuals’ well being directly, as do the international rules - if
more indirectly. However, these empirical claims do not suffice to extinguish claims
that the GBS should be regulated by principles of distributive justice. There are at
least three reasons to challenge this anti-cosmopolitan argument.
Firstly, the variations among states do not entail that the domestic opportunity spaces
and the choices made are not also profoundly affected by the GBS. In our
interconnected world, it is difficult to disentangle and distinguish sharply between
the impact of domestic and that of international institutions, e.g. concerning the
economy, exchange rates, or how trade rules affect the bargaining power of
multinationals vis-à-vis host governments. Consider the effects of agricultural
subsidies in rich countries, combined with the rules of the international trading
system voting rights in the IMF and the World Bank, and the regulations that allow
global mobility of capital. All of these, in complex interaction, help explain the
options open to many states on issues ranging from export policies to taxation of
mobile capital. The fact that important decisions are made at the domestic level does
not completely extinguish the impact of international rules.
Secondly, it does not follow from the de facto effects of domestic decisions that the
international rules therefore matter less, but only that they matter in different, more
indirect ways. We may agree, for instance, with Risse that much harm is wrought by
the quality of domestic institutions (Risse 2005, 356-79). But his claim that this is
something which outsiders can do little about is open to challenge. In particular,
consider how international rules also affect the political will of many domestic
governments. The ability of unelected elites to remain in power often depends on
access to international markets to buy weapons and make loans, and to sell the
territory’s natural resources. These legal privileges are defined by international rules,
and thus depend on compliance by other governments and their peoples (Pogge
2008). Other rules could have been in place, eg that would not recognise dictators as
entitled to their country’s resources or to borrow money from international sources.
If so, these domestic authorities would no doubt have made quite different decisions.
Thirdly, claims that state governments must bear all responsibility for the
distributive claim that individuals have, and thereby insulate the international
institutions from claims to distributive justice, amounts to an inappropriate
reification of statehood.
The authority, powers and immunities of states are themselves defined by
international law and institutions. States understood as complex sets of legal rules
and practices are important parts of our current GBS. And in particular, their bundles
of legal powers referred to as ‘sovereignty’ are part of, and constituted by, our
current GBS. Even if states as we know them do play a predominant role for the
- 12 -
distribution of benefits and burdens among individuals, this does not reduce the
importance of the GBS. To the contrary: since states are part of the present GBS, such
facts underscore the need to consider whether such a system of states is just, by
principles of distributive justice. I elaborate on this interpretation of statehood below,
and use this point to respond to further anti-cosmopolitan objections.
3.3 Sovereign States are constituted by the Global Basic Structure
Crucial aspects of statehood as we know it are social constructs largely constituted by
the GBS. A sovereign state is composed of a complex bundle of rules and practices,
crucially including various legal powers and immunities that define the state as an
international legal actor; and the legal powers and immunities vis-à-vis other states
with regard to respect for its borders and citizens. Consider that recognition by other
states is a necessary condition for attaining and maintaining state sovereignty.
I submit that sovereignty can therefore be regarded as a particular SPG. To be a state
in the global legal order and on the international arena is largely constituted by rules,
practices and actions by actors outside the state borders – including other states,
individuals, International Organizations, Multinational Corporations and Non-
governmental Organisations. Several of the important benefits and burdens to such
sovereign states are partly effects of international institutions: International rules
allow governments of such sovereign states to enter into treaties, or acquire
international debts which later governments of that state must honor. The Bank for
International Settlements and the World Trade Organization regulates central aspects
of international monetary and financial cooperation, and trade – but only among
those parties who are recognized as states.
Against this view, consider Freeman’s objection that control over territory is not a
matter of instiutional rules:
peoples can and have controlled territories without a need for
any sort of norms of cooperation or even recognition by other
peoples at all. Indeed this has been true of many countries for
most of history; they have existed in a Hobbesian state of war.
... unlike property and other basic social institutions, a people’s
control of a territory is not necessarily cooperative or in any
way institutional, (Freeman 2006, 248)
In response, I suggest that we must distinguish Freeman’s historical claims about
control over territory from the legal notion of soverignty. The present institution of
sovereignty includes international recognition in ways indicated above. This is
clearly true with regard to respect for the integrity of state borders. Thus
States which have refrained from joining the Convention [on
the Law of the Sea] have no means of claiming an outer limit to
their continental shelf which will be recognized by the
international community. (Wolfrum 2008, 18)
- 13 -
Furthermore, consider the authority of state governments to enter into binding
agreements. The historical source of such entities may often be groups of individuals
who imagine themselves to be a people or a nation and for this reason want a state
(Anderson 1983). However, this in neither necessary nor sufficient to be a state:
multi-ethnic states exist as a matter of international law even though they consist of
individuals who regard themselves as members of different nations. And many
governments have recently discussed whether to recognize Kosovo or the Palestinian
people as a state. Thus, the ability of a state to enter treaties is not only a matter of it
declaring itself to be a state, or of whether it has certain necessary features, but often
depends on whether other sovereign states recognize it as such a state (Crawford
2005, 15-24). With such recognition, control over territory will certainly be much
more difficult for most states, and far more costly even for powerful state.
I submit that the GBS includes such international rules about sovereignty, and a
wide range of background rules for reaching specific agreements on issues including
trade, investment, currency exchange, and travel. These background rules have great
effects on individuals. This set of rules share several of the normatively salient
features of domestic BSs. They impact fundamentally on individuals’ starting points,
life chances and preference formation, though often with the rules that constitute
states as intervening causes. And these rules are not natural but partly under willful
control. Thus it is also of practical relevance to ask whether the rules of state
sovereignty should carve out rights and immunities the way they currently do, and
whether international institutions should distribute benefits and burdens the way
they do . Indeed, in the European Union we witness how these rules are changing
and thus profoundly reconfigure the state system in Europe. In the following I
consider objections to the claim that these benefits of the GBS, such as the good of
sovereignty and benefits of the rules that allow and regulate international trade,
should appropriately be assessed by standards of distributive justice that apply to the
GBS as a whole.
3.4 Objection: Global institutions are supervenient, agreed among states
One forceful objection against the existence of a GBS is that while there are global or
international institutions, these should not be subject to principles of distributive
justice. Thus Freeman argues:
There is no global basic structure because there are not basic
global institutions–no world state, no independent global legal
order, no global property system, no independent global
contract law, negotiable instruments law, securities law, and so
on. The rules and institutions that make global economic
cooperation possible are national, and they apply internationally
only due to agreements among peoples. (Freeman 2006, 247)
- 14 -
In response, there are at least two ways to reject this objection: Empirically, and
normatively: why such ‘supervenience’ of global institutions on state consent insulates
them from claims of distributive justice.
Empiricially, Freeman holds that states remain the central authors of international
regulations:
... even in the few cases where international norms do exist
endependent of any nation’s particular law, these norms do not
issue from any global political body with non-derivative
original political and legal jurisdiction, for there is none.
Whatever jurisdiction global regulators and courts have is not
original, but they have been granted and continue to enjoy it
only by virtue of the political acts of different peoples.
(Freeman 2006, 247)
However, the actual design of international institutions – both as to their creation
and their substantive contents – is to a certain extent not controlled by state
governments, neither de facto or de jure. One area concerns customary international
law. Moreover, with regard to a wide range of regulations, the chains of command
and accountability from governments to their delegates - who often cooperate with
private actors - are so long and opaque as to make control and informed consent
impossible. Consider, for instance, the binding effect of WTO’s Dispute Settlement
Body (DSB) decisions, that reach far beyond the WTO Members directly involved in
the dispute with considerable implications for business operators. A wide variety of
international rules are the result of private parties engaged in ‘private governance’
that leave governments with no de facto choice, exit nor voice. Examples range from
the International Organisation for Standardisation over the regulation of the internet,
to transnational civil society organisations that influence both states and
transnational corporations (e.g. Hall and Biersteker 2002; Ruggie 2004; Follesdal,
Wessel et al. 2008, Keck and Sikkink 1998). Finally, many treaties evolve drastically
over time, often far beyond what the states could have expected: witness the
‘dynamic interpretation’ of the European Court of Human Rights, or that of the
European Court of Justice. Thus Philippe Sands notes that
…the rules, once adopted, take on a logic and a life of their
own. They do not stay within the neat boundaries that states
thought they were creating when they were negotiated. You can
see that most clearly in the rules on free trade and foreign
investment. (Sands 2005, 8)
While states remain the primary political organizations, it is drastically incomplete to
describe the current web of international institutions as exclusively consisting of
norms agreed among states. In addition, of course, it is a highly inaccurate
description of the current world order to hold that governments’ consent can
plausibly always be taken to express or indicate the acts of ‘peoples.’ Too many
governments are not even ‘decent’ in Rawls’ terminology (Rawls 1999), and lack
- 15 -
meaningful accountability mechanisms to be able to assume that government
decisions are sufficiently responsive to the interests of their subjects.
A more plausible position may be that states are still in control in that each can
legally chose to withdraw from any particular treaty, and that absent such exit, the
state tacitly consents. However, these empirical worries raise the normative puzzle
even more clearly: why should state consent of this kind render inappropriate the
application of principles of distributive justice to these international norms and
institutions? - In the following I present and criticize three proposed arguments in
favor of this claim.
Before turning to those, note in passing that Freeman’s argument may be criticized
for slipping too quickly from is to ought: even if it is correct that states have agreed
to many of the prevalent international norms, it is by no means obvious that this is
the most defensible arrangement. Firstly, treaties are typically negotiated by the
executive branch, in ways that leave the typical democratically accountable
legislature few opportunities to review and assess the process and alternatives.
Secondly, it might arguably be better that other bodies that the present crop of states
made and agreed international norms. One alternative could be that only human
rights respecting democracies were recognized as authors of such norms. This is
arguably the procedure for the regional norms of the European Union. It only allows
as members states who have ratified the European Convention on Human Rights.
3.5 State Consent secures the requisite division of labour without a global
basic structure?
An anti-cosmopolitan argument might hold that the present issues of injustice that
arise for the GBS are largely due to non-ideal circumstances. In a more just world
there is a division of labour among states so that each state bears the responsibility
for the economic well-being of its people. Under more ideal conditions that the
present, all states could insulate their domestic affairs sufficiently from the
disadvantages of international institutions to ensure that the inter- state distribution
was hardly significant from the point of view of justice, and so that whatever
cooperation was desired could proceed fairly on the basis of state consent.
Against this claim, I submit two points. Firstly, presumably, such a world order of
economically more insulated states might or might not be normatively ideal, but be
that as it may, the question of concern to us is rather the normative standards for
global orders more similar to the present one. It would seem that Rawls was too
optimistic with regard to the ability of states to insulate its citizens from the impact of
international institutions. At present not even affluent, domestically just states can
insulate their citizens from the differential impact of international trade and
competition. In the mid-20th century the US and European social democracies could
benefit from economic globalisation, while buffering the vulnerable segments of
society in a
- 16 -
grand social bargain whereby all sectors of society agreed to
open markets,… to contain and share the social adjustment
costs that open markets inevitably produce. … Governments
played a key role in enacting and sustaining this compromise:
moderating the volatility of transaction flows across borders and
providing social investments, safety nets and adjustment
assistance yet all the while pushing international liberalization.
In the industrialized countries, this grand bargain formed the
basis of the longest and most equitable economic expansion in
human history. (Ruggie 2003: 232)
But Ruggie and others note that such protection and safety nets, previously
unavailable for the ‘developing’ world, is increasingly also beyond the reach of the
‘developed world’ and its citizens as well:
It presupposed the existence of national economies, engaged in
external transactions, conducted at arms’ length, which
governments could mediate at the border by tariffs and
exchange rates, among other tools. The globalization of
financial markets and production chains, however, challenges
each of these premises and threatens to leave behind merely
national social bargains. (Ruggie 2003, 232)
This limit on states’ abilities may point to another conclusion to be drawn from the
present non-ideal forms of globalization: A more just GBS should include
international arrangements that compensate the costs of globalization to those
disadvantaged by it, in effect applying standards of distributive justice.
The second objection to this argument is that states engaged in global trade and other
forms of long term institutionalised interaction must have arrangements in place to
maintain background justice. The same arguments for an institutional division of
labour council a GBS as for a domestic BS. There is no reason to believe that
voluntary state agreements over time can avoid unfair bargaining power etc. Rawls
makes precisely these points in the Law of Peoples:
I assume, as in the domestic case, that, unless fair background
conditions exist and are maintained over time from one
generation to the next, market transactions will not remain fair,
and unjustified inequalities among peoples will gradually
develop. These background conditions and all that they involve
have a role analogous to that of the basic structure in domestic
society. (Rawls 1999, 42, footnote 52, my emphasis)
A further assumption here is that the larger nations with the
wealthier economies will not attempt to monopolize the market,
or to conspire to form a cartel, or to act as an oligopoly. (Rawls
1999, 43)
- 17 -
I submit that these functions are the same that a domestic BS must secure
domestically, to ensure the long term justice of individual transactions and
agreements. But this does not suffice to show that such a GBS should be regulated by
principles of distributive justice. However, the GBS is sufficiently similar to the
domestic BS in further ways.
3.6 Consent rather than coercion, hence no basic structure?
One reason to hold that state consent invalidates comparisons between a domestic BS
and a set of international institutions is that the domestic BS is a special case of
coercion, which raises particular challenges of normative legitimacy. Since by
hypothesis states consent to the international rules and institutions, there is no
coercion in need of justification.
In response, many authors will insist that several though not all states are de facto
coerced to acquiesce in existing international rules, in part because exit from certain
regimes is economically or politically impossible (Cavallero 2010). For instance, states
can hardly contemplate not being part of the WTO. Thus several international
institutions and rules must be said to coerce states, albeit by other means than
military threats. The International Monetary Fund can threaten to withhold
international aid to pressure states to liberalize their capital markets, and exercises
indirect power by signalling to private investors.
A second anti-cosmopolitan argument may grant that there is coercion, but hold that
the kind of coercion that international institutions and rules exercise is relevantly
different from that of domestic BS.
3.7 There is no coercion of the requisite kind: to ensure stable
expectations, or legitimacy?
Some authors hold that the coercion international institutions enjoy is a different form
of coercion (Blake 2001, 280; Nagel 2005). Wherein lies the normatively significant
difference?
At least two possibilities are worth considering.
Firstly, Nagel may plausibly insist that one of the main contributions of the domestic
BS is to provide assurance of general compliance with public rules, so as to enable
stable expectations about the future conduct of others. Threats of coercive sanctions
may help provide such assurance. In the absence of global enforcement agencies, it
might be thought that a GBS cannot provide such assurance of states’ future actions.
In response, I submit that there are other means to stabilize expectations than
international courts. Several scholars have addressed the perplexing question of why
states tend to comply with treaty obligations to a significant degree – even in the
absence of international enforcement. Among the answers is that the obligations of
international law have been internalized to a large extent. They are regarded as
normatively binding by several domestic significant actors – ranging from civil
- 18 -
society organizations to courts. Non-compliance can be costly signals of lack of
trustworthiness in general (e.g. Chayes and Chayes 1995, Franck 2006; Sands 2005;
Simmons 2009). Furthermore, various ‘non-binding’ international rules have legal
consequences: there are differences in degree, rather than differences in kind of
mechanisms for ensuring compliance (Guzman 2010; Guzman and Meyer 2010) .
Consider that General Assembly Resolutions and a host of other ‘non-legal’
pronouncements shape interpretations of legally binding rules, and thus “shape
states’ expectations as to what constitutes compliant behaviour” (Guzman and Meyer
2010). This is one way that binding international law develops, “from acts which are
not, in the formal sense, ‘binding’ (Higgins 1995, in Guzman 2009). The upshot is that
the lack of strong international sanctions does not prevent the existence of a
sufficiently robust GBS.
Another more complex argument concerns the normative warrant for coercion that
the domestic BS must enjoy. Recall Nagel’s central claim involved in exercising
power in the name of those subject to it: the need for the institutions to create
political obligations among their subjects that they have a duty of justice to obey. It
is for this reason that the BS must satify principles of justice, and it is because the
subjects are to be recognized as equals that certain inequalities are objectionable. The
political authorities and other subjects can expect each to obey, but only if the
institutions are fair (Nagel 2005, 134). Blake may have similar arguments in mind
when writing that
[n]o matter how substantive the links of trade, diplomacy, or
international agreement, the institutions present at the
international level do not engage in the same sort of coercive
practices against individual moral agents (Blake 2001, 265).
Nagel might seek to argue that a GBS does not need to elicit political obligations of
compliance among those subject to it. That is, there is no need for actors such as
states to expect other significant actors to comply out of a sense of justice, i.e. from a
sense that the rules are normatively legitimate, even when such rules are counter to
their self oriented preferences.
I disagree with such claims. For the complex global interdependence of states and
individuals to function effectively, actors must have stable expectations. This is may
be difficult, especially with few sanctions at disposal at the international level, and if
there are wide spread suspicions that a state will withdraw from a treaty as soon as it
finds it in its self interest to do so. Expectations of future compliance are bolstered if
several significant actors chose to sign up to and comply with international rules
from a sense of justice. In practice, many see the need for such expectations, based on
a sense that the international institutions are normatively legitemate. Thus Bodansky
holds that as international institutions
have become more influential, and as the need has grown for
international institutions with greater authority to address
- 19 -
collective problems such as climate change, this has prompted
more questions about what will make such institutions
legitimate (Bodansky 2008, 309)
Likewise, Matthias Kumm notes that partly as a result of the independence of
international law from state consent, for domestic legislatures and courts
International law’s legitimacy has become a central concern.
Contemporary critiques of international law take many forms.
Particularly influential in recent years are critiques made in the
name of commitments of constitutional self-government and
democracy. (Kumm 2004, 907-8; and see Buchanan and
Keohane 2006)
The upshot is that the same sort of normative challenge of justifiability and
legitimacy is raised toward international rules and institutions, as toward the
domestic BS. The question is whether such coercion can be defended as legitimate,
carried out ‘in the name’ of those subject to it. This would seem to provide the same
normative setting for which Nagel defends principles of distributive justice that limit
inequality.
It seems that the normatively salient features and functions of a domestic BS that give
rise to standards of distributive justice among subjects, also hold for the GBS. In
particular, it seems that the role of states, and consent of states, cannot support
claims that the GBS is sufficiently different that some such distributive standards
should also apply to it.
4 Conclusion
Several authors have argued about whether it is appropriate to bring principles of
distributive justice to bear on the global order as a whole, including international rules
and institutions. Some have maintained what I have referred to as ‘anti-
cosmopolitan’ positions: that once the basic needs of all are secured, individuals have
no further claims on shared international institutions to equal or other relative
distributive shares. There are no limits on permissible global inequalities. I have
addressed and sought to rebut some of these arguments. Central to these arguments
is the assumption that the institutions above states, such as there are, are not of a
kind that give rise to distributive claims. I have considered the premises about the
nature of and contributions of international law and treaties, central components of
the alleged GBS. I have suggested that the impact, source, means and functions of the
GBS are not so different from the domestic BS as to render claims of distributive
justice a category mistake.
Our world is ‘partly globalised’, characterized by ‘complex interdependence’ among
states; – and suffering from a major governance gap (Keohane 2001). Market
competition, oligarchic trans-national corporations, structural adjustment policies
and international human rights norms drastically affect, enhance and restrict, states’
- 20 -
ability and legal authority to determine their international and domestic policies.
Some government can buffer the impact of international economic inequalities, but
only in part, and not all governments can do so (Ruggie 2004). One central reason
why the impact of current state borders is normatively highly problematic is that the
bundles of legal powers and immunities that are sovereign states are themselves part
of the GBS: a web of practices, regulated by rules, which all of us participate to
maintain. That some of us derive great benefits, and exercise much control over the
rules, while others mainly suffer large disadvantages of this common project, is
incompatible with a commitment to treat all as political and social equals.
5 References
Abizadeh, A. (2007). "Cooperation, pervasive impact, and coercion: on the scope (not
site) of distributive justice." Philosophy and Public Affairs 35: 318-358.
Anderson, B. (1983). Imagined communities. London, Verso.
Archibugi, D., D. Held, et al. (1998). Re-imagining political community: studies in
cosmopolitan democracy. Oxford, Polity Press.
Barry, C. and L. Valentini (2009). "Egalitarian challenges to global egalitarianism: A
Critique." Review of International Studies 35: 485-512.
Blake, M. (2001). "Distributive justice, state coercion, and autonomy." Philosophy and
public affairs 30: 257-296.
Bodansky, D. (2008). The concept of legitimacy in international law. Legitimacy in
International Law. R. Wolfrum and V. Roben. Heidelberg, Springer: 309-317.
Buchanan, A. and R. O. Keohane (2006). "The legitimacy of global governance
institutions." Ethics and International Affairs 20(4): 405-437.
Caney, S. (2005). Justice beyond borders. Oxford, Oxford University Press.
Cavallero, E. (2010). "Coercion, Inequality and the international property regime."
Journal of political philosophy 18(1): 16-31.
Chayes, A. and A. H. Chayes (1995). The New Sovereignty: Compliance with
international regulatory agreements. Cambridge, Mass., Harvard University
Press.
Cohen, G. A. (1997). "Where the action is: On the site of distributive justice."
Philosophy and Public Affairs 26(1).
Cohen, J. and C. Sabel (2006). "Extra Rempublicam Nulla Justitia?" Philosophy and
Public Affairs 34: 113-147.
Crawford, J. (2005). The creation of states in international law. Oxford, Oxford
University Press
Follesdal, A., R. Wessel, et al., Eds. (2008). Multilevel Regulation and the EU: The
interplay between Global, Europan and National normative processes. Leiden,
Martinus Nijhoff.
- 21 -
Franck, T. M. (2006). "The power of legitimacy and the legitimacy of power:
International law in an age of power disequilibrium." American Journal of
International Law 100.
Freeman, S. (2006). Distributive justice and The Law of Peoples. Rawls's Law of
Peoples: A realistic Utopia? R. Martin and D. Reidy. Oxford, Blackwell.
Goodhart, M. (2008). "Human rights and global democracy." Ethics and International
Affairs 22(4): 395-420.
Goodin, R. E. (1988). "What is so special about our fellow countrymen?" Ethics 98:
663-686.
Gould, C. C. (2004). Globalizing Democracy and human rights. Cambridge,
Cambridge University Press.
Guzman, A. T. (2010). How International Law Works: A Rational Choice Theory
Oxford University Press.
Guzman, A. T. and T. L. Meyer (2010). "Explaining Soft Law." Journal of Legal
Analysis - online. http://jla.hup.harvard.edu 2(1).
Hall, R. B. and T. J. Biersteker, Eds. (2002). The emergence of private authority in
global governance. New York, Cambridge University Press.
Higgins, R. (1995). Problems and process: International law and how we use it.
Oxford, Oxford University Press.
Julius, A. J. (2003). "Basic structure and the value of equality." Philosophy and public
affairs 31(4): 321-355.
Keck, M. and K. Sikkink (1998). "Activists beyond borders: advocacy networks in
international politics."
Keohane, R. O. (2001). "Governance in a Partially Globalized World." American
Political Science Review 95(1): 1-13.
Kumm, M. (2004). "The legitimacy of international law: A constitutionalist
framework of analysis." European Journal of International Law 15: 907-931.
Milanovic, B. (2007). "Global Income Inequality." Soundings(37): 58-65.
Milanovic, B. (2007). Globalization and inequality. Global Inequality. D. Held and K.
Ayse. Oxford, Oxford University Press: 26-49.
Murphy, L. (1999). "Institutions and the demands of justice." Philosophy and public
affairs 27(4): 251-291.
Nagel, T. (2005). "The problem of global justice." Philosophy and public affairs 33(2):
113-147.
Pettit, P. (2000). Democracy: Electoral and Contestatory. Designing Democratic
Institutions. I. Shapiro and S. Macedo. New York, New York University Press:
104-144.
Pogge, T. (2008). World Poverty and Human Rights 2. edition. Oxford, Polity.
Pogge, T. W. (2000). "On the site of distributive justice: reflections on Cohen and
Murphy." Philosophy and public affairs 29(137-169).
Rawls, J. (1971). A theory of justice. Cambridge, Mass., Harvard University Press.
- 22 -
Rawls, J. (1988). "The priority of right and ideas of the good." Philosophy and Public
Affairs 17(4): 251-276.
Rawls, J. (1993). Political liberalism. New York, Columbia University Press.
Rawls, J. (1999). The law of peoples. Cambridge, Mass., Harvard University Press.
Risse, M. (2005). "How does the global order harm the poor?" Philosophy and Public
Affairs 33(4): 349-376.
Ruggie, J. G. (2003). Taking embedded liberalism global: The corporate connection.
Taming globalization. D. Held and M. Koenig-Archibugi. Cambridge,
Cambridge University Press: 93-129.
Ruggie, J. G. (2004). "Reconstituting the global public domain: issues, actors and
practices." European journal of international relations 10: 499-531.
Sands, P. (2005). Lawless World. London, Allen Lane.
Scheffler, S. (2006). Is the Basic Structure Basic? The Egalitarian Conscience: Essays in
honour of G.A.Cohen. C. Sypnowich. Oxford, Oxford University Press: 102-
130.
Sen, A. K. (1992). Inequality reexamined. Cambridge, Massachusetts, Harvard
University Press.
Simmons, B. A. (2009). Mobilizing for Human Rights: International Law in Domestic
Politics. New York, Cambridge University Press.
UNDP, U. N. D. P. (2010). "Human Development Report 2010."
Wolfrum, R. (2008). Legitimacy in International Law from a Legal Perspective.
Legitimacy in International Law. R. Wolfrum and V. Roben. Heidelberg,
Springer: 1-24.
