Global Justice and Norms of Co-operation: The ‘Layers of Justice’ View
Jonathan Wolff, Dept of Philosophy UCL email@example.com
Abstract: Theorists of global justice confront an apparent dilemma. If citizens in the developed world have duties of (socio-economic) justice to those elsewhere on the globe, then it is supposed that the duties must be very extensive indeed, requiring the same concern to be shown for everyone on earth. Those who deny that global obligations are as extensive as domestic obligations seem therefore to have to concede that any obligations beyond borders must be based on charity, rather than justice. The assumption on which this dilemma is based is that 'justice is uniform'. In this paper I argue that such an assumption should be rejected in favour of the view that justice is relative to norms of co-operation. Consequently it is possible to develop a view of 'justice but not the same justice': the ‘layers of justice’ view.
1. The Dilemma of Global Justice
Do citizens of wealthy, developed, nations have duties to provide assistance in some form to impoverished citizens of poor countries? If so, what is the source of those duties, and what is their extent? Broadly, contributions to this debate are coloured by what they take to be, or at least treat as, their ground level assumption. At one end are those – often called cosmopolitans – who argue that we must start from assumptions about the universal moral equality of all individuals. It has sometimes seemed that an irresistible consequence of such an assumption is that, in principle, one’s duties to all other human beings have the same basis, and as a consequence all duties of justice are as extensive as duties to our fellow citizens. Consequently, whatever principles society adopts for ‘domestic justice’ must also apply across the globe. So, for example, those who argue for the Difference Principle – that society should be so arranged as to maximise the wealth and income of the least advantaged - must, in consistency, apply it on a global scale, which entails a very radical redistribution indeed.
Some cosmopolitan theorists find this an acceptable, perhaps even welcome, consequence of their view (see, for example, Steiner 2005). Other political philosophers, however, find the idea of global distributive justice, modelled on their preferred theory of domestic justice, unacceptable (Rawls 1999, Nagel 2005). There are various reasons why this might be. There are, for example, technical questions such as whether a global principle of equality is meaningful: is there a suitable international metric of wealth and income, for example? But much more commonly the theory of global equality has been thought to be unacceptably demanding. This unacceptability could have numerous different sources. One is pragmatic. Some might feel that advocacy of global equality would be naïvely counter-productive, even if morally it is the correct view, for it is already hard enough to get people to take seriously claims of domestic distributive equality. Extending economic equality to the globe could be treated as a reductio ad aburdum, and hence, in order not to discredit one’s arguments concerning domestic justice, it is necessary to find some way of resisting the spread of those principles to the global context. Alternatively, one could simply find it impossible to convince oneself that there are such extensive duties of justice, whether for reasons of justice or of feasibility. A further worry is that a programme of global redistribution to achieve equality is in some way patronising and paternalistic. Granted, there may be strong reasons for redistribution, but applying the same principles to the globe as one applies to one’s own society undercuts local autonomy and self-determination of peoples (see, for example, Bertram 2005).1 Accordingly some theorists would wish to adjust their fundamental principles in ways that differentiate local and global duties.
One popular way of pursuing this more minimalist line is to argue that duties of justice only arise in a certain context, and that context is met in the domestic case but not in the global case. Strictly speaking, such theorists have argued, economic and social duties to those in other countries are not duties of justice. Perhaps they are duties of charity, or of humanity. This ‘political’ or ‘nationalist’ position allows the theorist to insist on stringent domestic duties of redistribution, but without also being committed to equally extensive duties of global redistribution. (Rawls 1999, Nagel 2005)
Neither the cosmopolitan or the political view seems particularly comfortable or attractive. Neither accords with what I take to be ‘common sense global justice theory’: that there are global duties of redistribution, based on principles of justice, not charity, but such duties are not as extensive as those of domestic justice. The question is whether such a view can be made out coherently. Both cosmopolitans and nationalists will presumably argue that such a view must be mistaken: cosmopolitans on the grounds that the duties of justice must be equally extensive as domestic duties; nationalists on the grounds that the duties of redistribution cannot be duties of justice. Most likely, the central reason for objecting to the common sense middle view is that it conflicts with what we could call the assumption of ‘the uniformity of justice’. This is the principle that the duties of justice are uniform, in the sense that they apply equally to all. My duties of justice to my neighbour must, on this view, be the same as those to someone over the other side of the globe. The cosmopolitan view accepts the assumption of the uniformity of justice and is thereby committed to extensive global duties. The nationalist also accepts the assumption of the uniformity of justice and consequently denies that one’s obligations to distant peoples are obligations of justice. Hence the cosmopolitan and the nationalist must reject the ‘differential global justice’ view, if their own positions implicitly or explicitly are based on the assumption of the uniformity of justice. But could it be that we should instead reject the uniformity of justice?
In fact, there are at least two ways of making out a differential global justice view. One is to argue that while principles of justice are uniform, their consequences vary from situation to situation. It could, for example, be argued that justice requires sufficiency, but what counts as ‘enough’ varies from place to place (Bertram 2005). This is a cosmopolitan view, but we could call it ‘weak cosmopolitanism, in contrast with ‘strong cosmopolitanism’ which suggests that duties are uniform as well as principles.Another way of rejecting uniformity of duties is theoretically more radical, arguing that principles of justice, as well as duties, are variable. This is the view I shall explore here: the ‘layers of justice’ view. (Mollendorf 2005 has defended a view of this type.)
In passing, it is worth noting that the substantive thesis that duties are variable has been implicitly accepted even by some thought to be in cosmopolitan camp. Thomas Pogge quotes Rorty’s attempt to impress on us how extensive the demands of global distributive equality would be, where Rorty argues that such redistribution would impoverish citizens of the currently wealthy nations to a point where they would no longer ‘recognise themselves’ or find their lives worth living. Pogge’s answer is that it would only take a transfer of 1.2% of the gross national income of the wealthy nations to eradicate severe poverty worldwide. This is a remarkable claim, and one that might even shame some people to action, but it hardly answers Rorty’s argument, unless one thinks that the only duty of egalitarian distributive justice is to eradicate severe poverty. (Pogge 2002, 7-8) Rorty’s point remains; achieving world equality would be almost unimaginably demanding for the rich. But if Pogge thinks he has answered Rorty, then it appears that he is assuming that the duties of global justice are less extensive than those of domestic justice. Hence he appears to adopt a ‘layers of justice’ view even if he is normally represented as a cosmopolitan. It is, of course, also possible that he is a weak cosmopolitan, asserting a single set of principles that are variable in their implications, but it is not the task of this paper to settle that question.
Before looking at the arguments for and against the uniformity of justice it would be helpful to consider some aspects of the scope of the question. We can distinguish at least three contexts in which questions of global justice arise. The first looks to past history; many of the world’s poorest countries have in common that there were once colonial possessions of now much wealthier countries. Commonly, indigenous peoples were slaughtered on a mass scale, the best land was appropriated for settlers, and natural resources claimed and taken without payment. (For one example, the case of Namibia, see Okupa 2006.) This raises the ‘backward looking’ question of reparation or compensation. (cf Lyons 1982).
A second domain in which questions of global justice emerge looks to the present rather than the past, that of what we can call ‘transactional justice’: justice in trade. Such a topic is an intense matter of international debate, involving questions of protectionism, dumping, loan terms, and other such matters. Here the point in question is whether internal transactions are currently being transacted on fair terms, and if not, what is needed to rectify the situation. (see Risse 2007, Kurjanska and Risse 2008).
Finally, there is what we might think of the question of pure distributive justice. Imagine that there had been no historical injustice calling for possible compensation, and that no questions of fairness of transactions arise. Nevertheless, could it not be that questions of what we might think off as pure distributive justice still arise? This, to contrast with the past-looking perspective of compensation, and the present-looking perspective of fair trade, might be thought of as a future- looking perspective of pure distributive justice. Hence there could be a topic of distributive justice which is not at all corrective for past and present acts of injustice. However, given the history of the world, and its current practices, the three perspectives are entangled, in that facts about the past and present must strongly influence our thinking about a just future.
2. Questioning the ‘Uniformity of Justice’
As suggested above, the stark choice between strong cosmopolitanism and the political view of ‘justice in one country’ is a consequence of the assumption of the uniformity of justice. In its simple formulation, the assumption of the uniformity of justice runs up against an obvious counter-example. Consider discussion about redistribution within the European Union. Some states give more than they receive back, and arguments concerning the justice and injustice of various arrangements – the common agricultural policy, the U.K.‘s rebate, the distribution of the ‘social fund’ – fly backwards and forwards. Yet the argument that if these discussions concern relations of justice then any principles to which appeal is made must be uniform with the conceptions of justice operating in each member state would seem highly implausible, and in any case, given that different norms of justice operate in different member states, would be impossible. Hence, it appears, these duties are not uniform, and it would be very implausible to suggest that they are duties of charity rather than justice.2 In response it could be said that duties of redistribution within the EU are not duties of justice, but rather the consequence of a pact for mutual advantage. Such a reply can be taken in more than one way. On one reading the operative concept in this response is pact; in the other it is mutual advantage. To take the latter first, such a response, even if based on a correct analysis, assumes that mutual advantage cannot be a source of norms of justice. This is an issue to which we shall return, and so I will suspend discussion of it. The ‘pact’ response assumes that duties between member states are essentially treaty obligations, and so the operative notion of justice is legal, rather than socio-economic. While reasonable in some circumstances, it appears that this analysis cannot explain the apparent application of questions of justice when the terms of membership of new states are under discussion. Furthermore, when considering the existence of long-established federal structures, as, for instance, the USA, it seems less plausible that questions of economic justice, and the redistribution of federal funds, insofar as that takes place, is the result of the interpretation of treaty obligations.
The example of federalism can, no doubt, be made consistent with both cosmopolitan and nationalist views.3 Nevertheless it also appears consistent with the idea that there can be ‘levels’ of justice, and therefore, gives us reason not to dismiss such a possibility.
3. Justice and Background Norms
What sense, however, can we make of the idea of levels of justice? We can imagine easily enough how this would work on an institutional level. As Nagel illustrates the point, as a prelude to dismissing it:
even if economic globalization does not trigger the full standards of social justice, it entails them in a modified form. In fact … there is a sliding scale of degrees of co-membership in a nested or sometimes overlapping set of governing institutions, of which the state is only the most salient. … [W]e should conclude that there is a … spectrum of degrees of egalitarian justice that we owe to our fellow participants in these collective structures in proportion to our degrees of joint responsibility for and subjection to their authority. My relation of co-membership in the system of international trade with the Brazilian who grows my coffee or the Philippine worker who assembles my computer is weaker than my relation of co-membership in U.S. society with the Californian who picks my lettuce or the New Yorker who irons my shirts. … One may even see an appeal to such a value in the call for standards of minimum compensation, fair labor practices, and protection of worker health and safety as conditions on international trade agreements—even if the real motivation behind it is protectionism against cheap third world labor. Perhaps such a theory of justice as a “continuous” function of degrees of collective responsibility could be worked out. It is in fact a natural suggestion, in light of the general theory that morality is multilayered.
Now, many, I think, will be attracted to this picture, yet it is a picture that Nagel himself rejects. His objection is:
But I doubt that the rules of international trade rise to the level of collective action needed to trigger demands for justice, even in diluted form. The relation remains essentially one of bargaining, until a leap has been made to the creation of collectively authorized sovereign authority. (Nagel 2005, 140-41)
His argument is that where the state, or a similar institution, does not exist, there is not justice, but simply bargaining. We do not ascend to ‘real justice’ until global sovereign authority exists. One can read this objection either as an intuitively plausible analysis which lends support to Nagel’s position, or as tending towards the question-begging, assuming, first of all that bargaining for mutual advantage has nothing to do with justice, and second that until sovereignty exists there is no justice, which is Nagel’s main thesis.
However, one can agree with Nagel that justice is relative to some background conditions without agreeing with the particular way in which he fleshes this out. It has become common to make a distinction between the thesis that justice is relative to institutions – Nagel’s thesis - and that justice is relative to interaction. The official Rawlsian story, in fact, is that justice is relative to co-operation, which sounds like the interactional view, although, Nagel’s version of Rawls somewhat incongruously presents him more like Hobbes in assuming that institutions of a particular type are necessary; states that can secure the conditions of background justice. While this is a plausible reading of Rawls, space is also open for alternative views. Nagel asserts several times that interaction without shared sovereignty is not sufficient to generate norms and duties of justice. Yet the argument seems hampered by a refusal to take seriously what seemed so plausible in the view that he wished to reject: that justice is somehow layered, and so we have duties of different ‘thickness’ to our fellow citizens and to the citizens of our trading partners.
Nagel’s main argument, in fact appears to echo Rawls’ response to libertarianism: justice requires a basic structure, especially to co-ordinate action and enforce rules, and only a state or similar sovereign institution can do this. (Rawls, 1993 262-5) It is highly plausible that Rawlsian principles of justice do need a sovereign institution, for the actions of uncoordinated individuals are extremely unlikely to bring about distributions sanctioned by the difference principle, however good willed individuals are. But if duties of global justice are less extensive than those of domestic justice, then it is less obvious that a basic structure co-ordinated by a state is necessary to achieve global justice. That is, if the Rawlsian argument is a practical one, rather than a conceptual one, everything depends on the content of the appropriate theory of justice. A more minimal theory possibly will not confront such serious problems of coordination.
4. Justice and Norms of Co-operation
The idea that justice emerges under condition of interaction needs further exploration. Interaction is not a simple idea, and it comes in different forms. Elsewhere I have discussed this in terms of the thesis that justice is relative to norms of co-operation, and that just as norms of co-operation can differ, so too will norms of justice. My first attempt to consider this issue was in terms of an attempted analysis of the principles of justice appropriate for the European Union, and it is worth briefly revisiting this issue, as a way of approaching the issue of global justice (Wolff 1996a, see also Wolff 1996b, both of which draw on Barry 1995).
In addressing the question of what principles of justice are appropriate for the European Union it seemed to me first of all we need a conception of the nature of the basis of the union; why have the countries of Europe decided to from themselves into a Union? Is Europe a collection of small and medium-size nations huddling together to protect themselves against a world then dominated by two ‘super-powers’, one to the east and one to the west? Or is the goal of an ‘ever-closer union’ genuinely part of the ideal, rather than mere ideology? It seemed plausible that the principles of justice appropriate for the European Union must depend first on how its members conceive its nature. It may also seem that if there is dispute about what type of entity the European Union is, then there is little surprise that there is also dispute about its appropriate norms of justice.
Putting the European Union to one side, let us consider a number of possible models of co-operation, and their associated norms of justice. Perhaps the weakest notion of co-operation is what is now known as the ‘stag-hunt’ game, after an example from Rousseau:
Taught by experience that the love of well-being is the sole motive of human actions, [the savage] found himself in a position to distinguish the few cases, in which mutual interest might justify him in relying upon the assistance of his fellows… [and] joined in the same herd with them, or at most in some kind of loose association, that laid no restraint on its members, and lasted no longer than the transitory occasion that formed it. …
In this manner, men may have insensibly acquired some gross ideas of mutual undertakings, and of the advantages of fulfilling them: that is, just so far as their present and apparent interest was concerned: for they were perfect strangers to foresight, and were so far from troubling themselves about the distant future, that they hardly thought of the morrow. If a deer was to be taken, every one saw that, in order to succeed, he must abide faithfully by his post: but if a hare happened to come within the reach of any one of them, it is not to be doubted that he pursued it without scruple, and, having seized his prey, cared very little, if by so doing he caused his companions to miss theirs. (Rousseau, 1973 86-7).
There is a clear question of whether this ‘loose association’ generates any principles of justice at all. Each person is free to come and go as they please, and co-operation lasts only for as long as each individual is prepared to co-operate. As soon as they see a prospect they prefer they can, and do, leave. Here they treat others as purely instrumental to their ends. Repeated interactions of this sort may lead to the develop of conventions concerning the division of the spoils, or how one should conduct oneself when on the hunt. But the key feature in Rousseau’s example seems to be that the participants are not committed to each other in any way. Any savage who leaves to chase a rabbit has not violated obligations to others.
Over time, though, more committed models of co-operation are very likely to develop. Those who too readily chase a passing rabbit will find themselves not invited to future stag hunts. Hence those with the self-discipline to accept a short-term loss for the sake of a longer-term gain will be rewarded. This generates the next model; co-operation for enlightened self-interest, or justice as mutual advantage. If everyone went their separate ways, they would achieve modest benefits. However with the continued co-operation of others, they can each do better. A surplus is possible, compared to independent action. Justice then is a matter of working out rules for the division of the benefit provided by co-operation.
This is the idea of justice as a mutual advantage; a type of bargain, in which those with the greatest bargaining power will, as a matter of justice (according to this theory), receive most. Note that bargaining power is determined by how much one – or rather one’s agreement - is needed by others, and not the extent of one’s contribution. This we see, rather chillingly, illustrated in Hume’s own application of his theory, worth quoting at length:
Were there a species of creatures intermingled with men, which, though rational, were possessed of such inferior strength, both of body and mind, that they were incapable of all resistance, and could never, upon the highest provocation, make us feel the effects of their resentment; the necessary consequence, I think, is that we should be bound by the laws of humanity to give gentle usage to these creatures, but should not, properly speaking, lie under any restraint of justice with regard to them, nor could they possess any right or property, exclusive of such arbitrary lords. Our intercourse with them could not be called society, which supposes a degree of equality; but absolute command on the one side, and servile obedience on the other. Whatever we covet, they must instantly resign: Our permission is the only tenure, by which they hold their possessions: Our compassion and kindness the only check, by which they curb our lawless will: And as no inconvenience ever results from the exercise of a power, so firmly established in nature, the restraints of justice and property, being totally USELESS, would never have place in so unequal a confederacy.
This is plainly the situation of men, with regard to animals; and how far these may be said to possess reason, I leave it to others to determine. The great superiority of civilized Europeans above barbarous Indians, tempted us to imagine ourselves on the same footing with regard to them, and made us throw off all restraints of justice, and even of humanity, in our treatment of them. In many nations, the female sex are reduced to like slavery, and are rendered incapable of all property, in opposition to their lordly masters. But though the males, when united, have in all countries bodily force sufficient to maintain this severe tyranny, yet such are the insinuation, address, and charms of their fair companions, that women are commonly able to break the confederacy, and share with the other sex in all the rights and privileges of society. (Hume 1970, 190-91)
The logic of Hume’s position is that if others have nothing to offer us, or what they have we can take from them independently of what they decide or want, then we have no duties of justice, strictly speaking, towards them. If there is no point to making a bargain, or no need to do so, then there is no justice. Hume does not deny that we have moral duties of humanity in such cases, but not of justice.
Hume’s argument appears to be, then, that if the stronger party can get what it wants from others, without their co-operation, then there are no norms of justice by which their behaviour can be criticized. As Hume himself implies, this sounds more like colonialism rather than global justice. Yet on the basis of the theory of mutual advantage such things as colonialism can be criticised in the following terms: if one of the parties is made worse off by interaction than they would have been without it, then it has not even reached the level of mutual advantage and must be example of fraud, theft or force.4 The obvious problem with the idea of justice as mutual advantage is that it does not rule out the possibility of the stronger party using their bargaining advantage to reap virtually the entire surplus. There are, of course, many historical examples of the such arrangements: such as the wage rates of workers in early capitalism, and international trade between rich and poor nations. Somehow, to achieve a more appropriate understanding of justice, the idea of ‘proper reward’ needs to be introduced, which generates the theory of justice known as ‘justice as reciprocity’ or ‘justice as fair exchange’. On this view justice requires not so much bargaining as proportionality: those who make the greatest contribution should, in justice, receive the greatest return. It is easy to see that ideas of desert naturally fit into this picture, although as soon as this is said it will also be seen that there are many ways of fleshing this out. Does desert attach to effort? Or to achievement? Or to some hybrid of the two. Many theories are possible, but the general notion of justice as fair exchange has great popular resonance, underlying slogans such as ‘a fair day’s pay for a fair day’s work’. It is this notion which makes the biblical ‘parable of the workers in the field’ so troubling (where the workers engaged at midday were paid the same as those who had worked all day), and in the international arena ideas of ‘fairtrade’ so appealling.
Justice as reciprocity is an intuitively powerful theory of justice. Yet it shares a problem with justice as mutual advantage. Both leave out of account those who may have nothing to contribute or exchange. Consider those people who are so severely disabled that they are unable to make any productive contribution, or those living in under-developed countries who produce nothing that those in the developed world wish to purchase, and are now suffering in a famine. On the two views of justice discussed so far there is no obvious way of generating duties of justice in such cases. If it is felt that under such circumstances such people are nevertheless owed assistance from those who are in a better position then according to justice as mutual advantage and justice as impartiality these duties would have to be of charity, rather than justice. But to many this will seem wrong, and that others have a duty of justice to help those who cannot help themselves or offer anything in exchange for help. A different theory is needed to explain this.
The most prominent candidate is ‘justice as impartiality’, where justice requires taking everyone’s situation and interests into account in determining what is to count as a just outcome. Here mechanisms for determining just outcomes take as their inspiration the thought ‘how would you like it if you were in that situation?’ So, for example, Adam Smith’s device of the ‘impartial spectator’ (Smith 2002, Part 3, Ch 3), or John Rawls’s ‘veil of ignorance’ (Rawls 1971) require the decision maker to take on the perspective of every individual involved or affected. To apply Rawls’ model to the case of the international justice (something Rawls himself does not do, of course) would be to ask the question: ‘what provisions for poor members of less-developed nations would you wish to see if you didn’t know whether or not you were rich or poor?’ Here a balance needs to be struck between the interests of those who are from poor countries, and those who will have to work to provide things such people cannot provide for themselves. Some have argued that a global difference principle would be the result, or, perhaps, a theory of global sufficiency. Indeed it is this conclusion that takes us back to our starting point: once we recognize that the ‘correct’ theory of justice is justice as impartiality, then global justice becomes hugely demanding; so demanding as to be off-putting for all except the most enthusiastic cosmopolitans.
Can we draw back from this conclusion? We have, after all, introduced three different models of justice: mutual advantage, reciprocity and impartiality. Why should it be that we have to accept justice as impartiality? One answer is that both mutual advantage and reciprocity allow significant injustice, and therefore are flawed as theories of justice. Accordingly justice as impartiality is the best theory, and so, it may be argued, is the only one that should be applied. (This is the conclusion drawn by Brian Barry, see Barry 1995) However it is not so clear that this is the right conclusion to draw. The lesson so far seems to be that theories of justice are relative to norms of co-operation, and so as norms of co-operation vary so will appropriate theories of justice. Within a very close-knit society, in which each person feels the weight of mutual responsibility, the type of collective sharing of fate required by justice as impartiality might seem an appropriate demand of justice, meaning, for example, that those who cannot look after themselves have the right to very substantial assistance from others. But where co-operation is much more fleeting and instrumental, substantial demands, as a matter of justice, may seem very implausible.
We can see, therefore, that if principles of justice are relative to norms of co-operation, and norms of co-operation differ in the contexts of domestic and global justice, then some version of the layers of justice view follows quite naturally. It is, surely, not implausible that norms of co-operation do differ in these contexts, and I will say a little more about this shortly. I have also claimed that principles of justice are relative in this way, and illustrated such a thesis, although perhaps not yet explained it, which will be our next task, in attempting to establish the layers of justice view.
To get started, let us consider a simple case to illustrate the different norms of co-operation and their relative principles of justice. Consider a wealthy farmer who employs a farmhand. At first, the farmer might pay the lowest possible wage, perhaps a subsistence level. In this way the farmer is trying to exert the maximum possible personal benefit, consistent with the recognition that the other is a human being with some rights, and cannot, for example, be legitimately enslaved. Here, then, we have an arrangement based on bargaining and mutual advantage. The farmer might defend his wage policy by saying that the worker has agreed to it; it is better for the worker to work at this wage than to be unemployed; and that he owes nothing to this particular worker except to abide by the terms of their contract.
As time goes on, however, the farmer might start to appreciate the productive benefit this particular worker brings, and raise her wages to reflect her contribution. This could be a purely self-interested market move, to prevent the worker leaving. Or, more interestingly, it could be that the farmer has understood that their relationship has moved on to a new level, where they must pay attention to each others contribution and desert, and start to apply at least some norms of reciprocity. Now suppose they grow old together, and there comes a point where the worker is no longer productive, and in fact presents a net loss to the farmer. Nevertheless, the farmer may continue to employ the worker, at a loss, or offer her a pension, even if that was never part of the contractual relationship. One reason for this could be pure self-interest; to gain a reputation as a good employer. Or it could be pure sentimentality; an act of charity. or a feeling of desert: she has been a loyal and productive worker and deserves to be taken care of in her old age. But to move us on to new ground it could be that, after having known his worker for so long, the farmer may have come to the belief that there is no particular reason in justice that he is rich and she is poor, and that their fates could easily have been reversed. Hence, it is only just that he should make a sacrifice now to help her – not as an act of charity but out of a sense of justice. This would be to see their relationship as having generated norms that justify impartial principles of justice.
Yet in saying that norms of justice are relative to practices of co-operation I have not yet said very much about the nature of norms of co-operation, and, indeed, how they generate principles of justice. This is a highly complex question, but to get started, we can see from the various examples given that a number of issues seem to be highly salient. Let me consider, in the first instance, two issues: First, to what degree is there a belief or expectation that the relationship will be continuing for some time? Second, to what degree does it generate dependency, perhaps by requiring at least one of the parties to decline other opportunities, or put themselves in a position where they are less able to take advantage of such opportunities?
Although it would be too much to hope for a deductive argument here, it seems plausible that a short-term arrangement that does not generate dependency will generate weaker norms of justice than a long-term relationship creating dependency. However, if the parties have equal bargaining strength – for example they operate in a genuinely free market on both sides – then agreements will generally approximate towards reward to productive contribution, which is to say that justice as mutual advantage will yield justice as reciprocity. The more difficult case is where a long-term arrangement (whether or not it creates dependency) is made between two parties with differential bargaining strength. Under such circumstances the weak party is ripe for exploitation, a working definition of which is that of the exploiting party using his or her superior bargaining strength to obtain an agreement which is unfair to the weaker party. It seems that the appropriate norms in this definition are norms of reciprocity. One test could be the restricted veil of ignorance: imagine you knew everything about the transaction, except which party you were to it. Would you be equally happy from each hypothetical side? If not, it seems that it fails the reciprocity test.
There are many examples of trade between two groups where the wealthier group has managed to create a dependency in the weaker group, and, in a relationship continuing for many years, has been able to extract virtually all the benefits of trade for itself. A museum in Bergen, for instance, shows a video recounting the trade between Norwegian cod fisherman and the German Hanseatic League. The fisherman had become utterly dependent on selling their annual catch to the Hanseatic League, and according to the story, the Hanseatic League would pay them each year at subsistence level, to keep the Norwegians fishing for another year, while always holding out the hope of a better deal next time round. Here it is tempting to say that perhaps in the first year or two whatever the parties agreed to was fair, or at least ‘fair enough’. After a while, though, the Norwegians had adjusted their behaviour so as to be in a position to trade with the Hanseatic League, which in turn made it more difficult to trade with others, and the continuing nature of this transaction, and the accompanying dependency made reciprocity appropriate. However, the Hanseatic League continued to exploit their superior bargaining strength for they could have survived perfectly well even without a contract to purchase the catch for a year or two, but no sale would have been a disaster for the Norwegians. Principles of reciprocity were called for, but were ignored by the Hanseatic League, which, in the circumstances as described made their behaviour exploitative and unjust.
Reciprocity evolves out of mutual advantage, under the right conditions. The next step, to impartiality, does not seem to be part of a natural evolution. It requires norms of justice, and redistribution, even when there is no existing co-operation or interaction. In this way, then, it is quite different from the other models. What then brings it into existence? One possible example to consider is provision within the welfare state, most notably unemployment benefit. Now it was considered a major advance to accept that states had a duty of justice, rather than charity, to provide for those who could not support themselves at an appropriate level. Reflecting on why it is we accept that the welfare state generates rights even for those who are not co-operating, and not even, in some cases, capable of co-opeating, could help us gain insight into when justice as impartiality becomes appropriate.
A first view is that the welfare state is not, genuinely, a realm of justice as impartiality. For example, it could be said that it is simply the price that the better off pay for social order, and hence is a matter of enlightened self-interest rather than impartiality. A similar conclusion follows from the thought that the reason why the wealthier are happy enough to support the welfare state is that they realise that they, or their friends or family, might need it themselves. Hence it is a form of compulsory insurance, and, once more a matter of enlightened self-interest.
It is, therefore, possible to support the welfare state without endorsing justice as impartiality. Justice as impartiality requires in addition the thought that others have a right to my help, not because they pose a potential threat, or occupy a position that I might one day occupy, but because it is morally arbitrary that I occupy a position of relative wealth and they of relative poverty. ‘There for the grace of God go I’, as distinct from ‘who knows, one day go I’. This level of fellow-feeling generates norms of impartial justice, and is a fine aspiration. How widely it is achieved in the real world is another question.
Applying the Layers of Justice View
I hope I have made it plausible that principles of justice are relative to norms of co-operation. I have also implied that the norms of co-operation that apply to any situation is an empirical question, but one that has powerful normative consequences: the norms of co-operation can generate principles which are out of step with the way the parties act, and this will often lead to exploitation, as discussed above. However we need to explore how this view can be applied to the international, and to the domestic, cases.
Insofar as international global justice is concerned, it is arguable that the world has largely achieved a transition from something approaching theft to mutual advantage, and is, at least in part, going through a slow transition from mutual advantage to reciprocity. We have, officially at least, moved from a set of relationships outside justice, as described by Hume, where Europeans simply felt that the world was theirs for the taking. This was initially replaced by an ideology of trade in which notions of fairness, beyond respect for property rights, had no place, and whatever was agreed to was just. In such a world, as we saw, the rewards go to those with the greater bargaining strength, which, roughly, is the party better able to deal with non-agreement and therefore can hold out for longer. This is a world in which rich countries can simply trade as they like, in respect to poor countries, and thereby cream off most of the gains of trade. However, we can see the fairtrade movement, and trade-round talks, as arguments that the relationships between the trading parties have reached a level where reciprocity is appropriate, but the gains of the wealthy parties are disproportionate and do not meet norms of reciprocity. Underlying such a criticism is the assumption that principles of reciprocity should now be governing interaction, which in turn, at least according to the analysis here, implies that the norms of cooperation we now have in place – that is the depth of forms of interaction between the peoples of the world – can in many cases make mutual advantage no longer appropriate. This is, of course, a struggle. And the world is nowhere near generating the norms of solidarity and fellow-feeling that make the theory of justice as impartiality appropriate on a global scale. This is why strong cosmopolitan views appear so implausible: we do not (yet?) have the norms of which would give justice as impartiality a motivational hook into individuals.
Indeed, as a matter of description of our practices, we can see that even in the case of domestic justice it is far from clear that we are ‘ready’ for justice as impartiality as a complete and single account of justice, at least in many societies. Perhaps the Nordic countries, with a small, relatively stable population have been able to develop the level of fellow-feeling and respect among all that gives justice as impartiality sufficiently strong roots to have motivational force. Yet elsewhere, especially taking the USA and UK as examples, domestic justice is shot through with a mix of principles of justice. Minimum wage legislation is partly guided by weak norms of justice as reciprocity; the provision of the welfare state has elements of mutual advantage and impartiality mixed in. Trade often combines mutual advantage and reciprocity to some degree, and only very rarely any element of impartiality. Roughly, the greater the weight given to impartiality, the greater the redistribution there will be. It appears, however, that in virtually all societies there is a cocktail of norms of co-operation and accompanying principles of justice, often in some tension. In domestic justice there is what we might think of a ‘thicker mix’ including some emphasis on impartiality.
When we turn to global justice, it is not at all uncommon to think in terms of rights and justice, but normally in relation to trade, which is the home of justice as mutual advantage and reciprocity. Of course a great deal of famine, emergency, and health aid is offered, but this is generally regarded as a matter of charity rather than justice, which is to say that principles of justice as impartiality do not extend very far into the global sphere. Nevertheless it can be argued that extreme poverty gives rise to duties of justice. How, though, can one argue for this without the full force of a global principle of equality coming in its train?
The answer is that appealing to justice as impartiality does not automatically rule out appealing to other principles of justice. Consider how different principles can be used to modify each other. Let us assume that an impartiality principle alone generates something like the difference principle.5 However, as we have noted, few if any societies have such a generous social structure as to guarantee that the worst off will be as well off as possible. One possible explanation for this is that such societies also contain norms of mutual advantage and reciprocity. From these it would follow that those people who are not contributing (very much) to the social product should receive less than those who are. Hence if reciprocity, in the sense in which it has been used in this paper, has any role to play, unemployment benefit, for example, should be significantly below the average wage, perhaps even below the minimum wage.
Now, the situation is dynamic and the fact that certain norms are in play does not mean that they must remain so for ever. Those who are convinced that human beings should rise to high levels of solidarity, and with it norms of impartiality, should see their primary task not so much as arguing for the best theory of impartial justice, but to argue why it is no longer appropriate to ‘cut’ the principle with a mixture of mutual advantage and reciprocity. In the global sphere we can see the right to be relieved from the most extreme poverty as the residue of a theory of justice as impartiality which is not drowned out by mutual advantage and reciprocity: i.e. there are situations which are so extreme as render irrelevant the fact that no profitable interaction is currently taking place. And again the argumentative task of cosmopolitans is to explain why human beings should have the level of global solidarity, unmixed with norms of mutual advantage and reciprocity, that would justify something like a global difference principle.
I hope I have said enough to at least cast grave doubt on the thesis of the uniformity of justice, and thereby make room for the layers of justice view. Now, it will be said, even if I am right all I have done is to provide a sort of moral sociology; that in the domestic sphere are ties with each other are much closer than they are in the global sphere, and as a result we tend to treat those closer to us as having more rights against us than those who are further away. However if I have done this much – if what I have said really counts as an explanation – then I have at least explained how the layers of justice view is possible. If there are different norms of justice, and different norms in play in different spheres, then it is not difficult to see how my obligations of justice to the members of my own society are stronger than my obligations of justice to those who live elsewhere, but remain, nevertheless norms of justice rather than charity. Much more, of course, needs to be done to work out the details of a ‘layers of justice’ view, but the prior task – my task in this paper – is to create the conceptual space for it.
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1 It is striking that the perspective of those who would be the beneficiaries of international redistribution has rarely been discussed at length in this debate. Relatively little has been said about their needs, desires or preferences. Indeed, to take this thought further, the potential intellectual contribution of recipient nations has also been largely ignored. The terms of the debate has been set by western political philosophy with little, if any reference, to the conceptions of justice that might be found in Africa, Asia or other recipient countries. Here I can do no more than note this gap, and express the hope to make some steps towards addressing it in future work.
2 I owe the observation that duties within the European Union cannot plausibly be thought of as duties of charity to Mike Otsuka.
3 Nagel mentions the possibility of a federal system with differing obligations at the state level and the federal level, which are different again to the obligations to non-members. Here, however, he seems to give priority to the federal level, which regulates the affairs of each member state. “Cosmopolitan justice could be realized in a federal system, in which the members of individual nation-states had special responsibilities toward one another that they did not have for everyone in the world. But that would be legitimate only against the background of a global system that prevented such special responsibilities from generating injustice on a larger scale. This would be analogous to the requirement that within a state, the institutions of private property, which allow people to pursue their private ends without constantly taking into account the aims of justice, should nevertheless be arranged so that societal injustice is not their indirect consequence.” p. 120 Nagel does not seem, in this passage, to consider the possibility that there is a degree of independence between the two levels.
4 This needs to be made out somewhat more carefully, as a party might enter a transaction making a calculated risk that fails to pay off. Hence the criterion should be formulated in terms of ‘expected benefits’ but I will leave this complication aside.
5 I say ‘something like’ because the metric of primary goods, and especially the difference principle’s concentration on income and wealth, is clearly inadequate when the Rawls’s simplifying assumptions are dropped. For an attempt to show how something like the difference principle can be recovered on a more pluralistic view of well-being see Wolff and de-Shalit 2007.