Ypi, Lea 2009. On the Confusion between Ideal and Non-ideal in Recent Debates on Global Justice. Political Studies, Vol. 58, Issue. 3, p. 536.
Ypi, Lea 2008. Justice in Migration: A Closed Borders Utopia?*. Journal of Political Philosophy, Vol. 16, Issue. 4, p. 391.
This article assesses the recent use of contractarian strategies for the justification of cosmopolitan distributive principles. It deals in particular with the cosmopolitan critique of political membership and tries to reject the claim that political communities are arbitrary for the scope of global justice. By focusing on the circumstances of justice, the nature of the parties, the veil of ignorance, and the sense of justice, the article tries to show that the cosmopolitan critique of political membership modifies the contractarian premises in a way that is both unwarranted and unnecessary. While failing to establish principles of global distributive justice, existing cosmopolitan adaptations of the social contract device simply weaken the method's justificatory potential.
1 See Goodin Robert and Pettit Philip, eds. A Companion to Contemporary Political Philosophy (Oxford: Blackwell, 2007), 1–6.
2 Some relevant contractarian defenses of global justice, upon which I focus more specifically in the following pages, may be found in Beitz Charles, Political Theory and International Relations (Princeton: Princeton University Press, 1999), 127–83 and 198–216; Beitz Charles, “Cosmopolitan Ideals and National Sentiments,” Journal of Philosophy 80, no. 10 (1983): 591–600; Barry Brian, The Liberal Theory of Justice (Oxford: Clarendon Press, 1973), 128–32; Moellendorf Darrel, Cosmopolitan Justice (Boulder, CO: Westview Press, 2002), 6–67; Pogge Thomas, Realizing Rawls (Ithaca: Cornell University Press, 1989), 211–80 and Pogge Thomas, “An Egalitarian Law of Peoples,” Philosophy and Public Affairs 23, no. 3 (1994): 155–224; Richards David A.J., “International Distributive Justice,” in Ethics, Economics, and the Law, Nomos XXIV, ed. Pennock J. Roland and Chapman John W. (New York: New York University Press, 1982), 275–99. Despite his emphasis on some limits of the argument, Simon Caney is also broadly sympathetic to this approach in his Justice Beyond Borders—A Global Political Theory (Oxford: Oxford University Press, 2005), 107–115. Some of the claims to which I refer in the following pages, in particular those regarding the distribution of natural resources, are endorsed by Tim Hayward, “Global Justice and the Distribution of Natural Resources,” Political Studies 54, no. 2 (2006): 349–69 and by Barry Brian, “Humanity and Justice in Global Perspective,” in Ethics, Economics and the Law, Nomos XXIV, ed. Pennock J. Roland and Chapman John W. (New York: New York University Press, 1982), 219–52.
3 For a first reference to the distinction between comparative and noncomparative ideas of justice, see Feinberg Joel, “Noncomparative Justice,” Philosophical Review 83, no. 3 (1974): 297–338. My use of the term here is related but not identical to Feinberg's.
4 For a duty-based approach, see O'Neill Onora, Bounds of Justice (Cambridge: Cambridge University Press, 2000), and “Agents of Justice,” Metaphilosophy 32, no. 1 (2001): 180–95. The most prominent consequentialist views can be found in Goodin Robert E., Protecting the Vulnerable: A Reanalysis of Our Social Responsibilities (Chicago, IL: University of Chicago Press, 1985) and “What Is So Special About Our Fellow Country-Men?,” Ethics, 98, no. 4 (1988): 666–83 and Nussbaum Martha, Frontiers of Justice (Cambridge, MA: Harvard University Press, 2006). For the rights-based perspective, see Shue Henry, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton: Princeton University Press 1996) and Jones Charles, Global Justice: Defending Cosmopolitanism (Oxford: Oxford University Press, 2001). Although starting with a contractarian strategy of justification in Realizing Rawls, Pogge's book World Poverty and Human Rights also defends global justice from a rights-based perspective. See Pogge Thomas, World Poverty and Human Rights (Cambridge: Polity Press, 2002). Pogge's apparently shifting position is due to the attempt to develop what he calls an “ecumenical” case in favor of global justice, which appeals to defenders of different strategies of justification. See the clarification in Pogge Thomas, “Real World Justice,” The Journal of Ethics 9, (2005): 25–53; 36–37. In this article I am only concerned with Pogge's contractarian arguments.
5 This is also the main difference between my defense of political membership and that of Rawls in The Law of Peoples. Indeed, the original position advocated by Rawls in this latter work starts with representatives of states (or peoples) but rejects the possibility of justifying global distributive principles. See Rawls John, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 118–21. I take Rawls to be right in stressing the relevance of political membership in the global application of the contractarian method but wrong in using this argument to deny the plausibility of global distributive principles. Since I only focus on cosmopolitan applications of contractarianism, I cannot go into the details of Rawls's global theory of justice in this paper. Instead I shall discuss some key features of his domestic theory of justice as they are endorsed by various cosmopolitan contractarians and emphasize some of the flaws deriving from this endorsement when combined to the cosmopolitan claim for the arbitrariness of political communities. For a more detailed discussion of Rawls's global theory of justice, see my “On the Confusion between Ideal and Non-Ideal in Recent Debates on Global Justice,” paper presented at the European Consortium for Political Research, 35th Joint Session of Workshops, Helsinki, May 7–12, 2007, accessible at http://www.essex.ac.uk/ecpr/events/jointsessions/paperarchive/helsinki/ws17/Ypi.pdf.
6 Because of its influence on the cosmopolitan version of the social contract, this article focuses on the adaptation of Rawls's domestic contractarianism to the circumstances of international society. It does not either consider other versions of it such as David Gauthier's account or attempt to redress Rawls's premises where they do not seem quite compatible with classical contractarian theories such as Rousseau's or Kant's. What it tries to do instead is to point at the tensions that the attempt to apply Rawls's domestic theory of justice at the international level generates when combined with existing cosmopolitan arguments for the arbitrariness of political communities.
7 See Pogge, Realizing Rawls, 254; Beitz, Political Theory and International Relations, 129; Caney, Justice Beyond Borders, 107; Moellendorf, Cosmopolitan Justice, 7; Richards, “International Distributive Justice,” 278–82.
8 Rawls's domestic argument featured in Beitz, Political Theory and International Relations, 130–31, and in his “Justice and International Relations,” Philosophy and Public Affairs 4, no. 4 (1975): 366–67; as well as in Pogge, Realizing Rawls, 242–54. The relevance of being in circumstances where resources are scarce and individuals have an interest to frame principles of justice jointly is emphasized also by Moellendorf, Cosmopolitan justice, 20–23.
9 Rawls John, A Theory of Justice, rev. ed (Cambridge, MA.: Belknap Press of Harvard University Press, 1999), 110; Beitz, Political Theory and International Relations, 130–31.
10 See, for example, Barry, The Liberal Theory of Justice, 128–32; Beitz, Political Theory and International Relations, 129–36, 143–53; Moellendorf, Cosmopolitan Justice, 30–40; Pogge, Realizing Rawls, 247 ff. For a similar critique of Rawls's limitation of the original position to domestic societies see also Scanlon Thomas M., “Rawls' Theory of Justice” in Reading Rawls: Critical Studies on Rawls' A Theory of Justice, ed. Daniels Norman (New York: Basic Books, 1975), 202–3.
11 The expression is taken by Sidgwick and appears in Beitz's characterization of the circumstances of justice in Political Theory and International Relations, 136–43. See also Beitz, “Justice and International Relations,” 366–67. It must be noticed that Beitz presents two versions of the contractarian argument and that in one of them, while discussing the issue of natural resources, he concedes that the addressees of distributive claims may be representatives of states. This, however, complicates rather than makes more straightforward his position. Indeed, the answer to the general question we are interested in—whether political communities are arbitrary for determining individual entitlements to natural resources and Beitz's claim that they are—remains unchanged in both versions. On the difficulty for states to accept a resource distribution principle on the basis of this latter assumption, see Hayward, “Global Justice and the Distribution of Natural Resources,” 352–53 otherwise sympathetic to some of Beitz's claims and David Miller's critical remarks in “Justice and Global Inequality” in Inequality, Globalization, and World Politics, ed. Hurrel Andrew and Woods Ngaire (Oxford: Oxford University Press, 1999), 191–98.
12 See Beitz, Political Theory and International Relations, 141. Compare the almost identical statement in Beitz, “Justice and International Relations,” 368–69.
14 See Pogge, Realizing Rawls, 225–250. A similar desert-based argument has led Pogge to justify a global resource dividend. See his “An Egalitarian Law of Peoples,” 155–224.
15 See Barry, “Humanity and Justice in Global Perspective,” 219–52.
16 The argument has been articulated at greater length by Charles Beitz. However, my remarks apply not only to Beitz but also to the other authors mentioned above, as well as to those scholars who have endorsed Beitz's claims on natural resources without questioning their coherence and indeed necessity from a contractarian perspective. See, for example, Hayward, “Global Justice and the Distribution of Natural Resources,” 349–69 and Caney, Justice Beyond Borders, 107–15. Although Caney does recognize some limitations of the cosmopolitan contractarian argument in delivering a complete theory of global distributive justice, he fails to see the role played by the critique of political membership in determining those limitations and is otherwise sympathetic to Beitz's argument on natural resources.
17 The note is found in an unpublished manuscript in the Institut für Sozialgeschiche in Amsterdam. Marx seems to have taken the anecdote from the book Du Culte des Dieux Fétiches ou Parallèle de l'Ancienne Religion de l'Egypte avec la Religion Actuelle de Nigritie, 1760 by the French writer Charles de Brosses. My quotation is taken from MacLaughlin Kevin, Writing in Parts: Imitation and Exchange in Nineteenth-Century Literature (Stanford: Stanford University Press, 1995), 13–14.
18 I am grateful to the anonymous reviewers of this journal for inviting me to consider them.
19 Hamilton Earl J., “Imports of American Gold and Silver into Spain, 1503–1660,” The Quarterly Journal of Economics 43, no. 3 (1929): 436–72, 437.
20 Hamilton Earl J., “The Decline of Spain,” The Economic History Review 8, no. 2 (1938): 168–79, 170.
21 Elliott John H., “The Decline of Spain,” Past and Present 20 (Nov., 1961): 52–75.
22 For a different critique of the natural resources argument, see Miller David, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007), 58–62. I believe, however, that Miller's claims do not prove the impossibility of justifying a global, distributive principle but only a specific way of applying the principle which seeks to equalize the position of individuals worldwide.
23 A referee suggests that one might reach the same conclusion by applying a Lockean labor theory of value. For reasons of space, I regret not being able to explore the implications of such suggestion in further detail.
24 See the discussions in Rodrik Dani, ed., In Search of Prosperity: Analytical Narratives on Economic Growth (Princeton: Princeton University Press, 2003).
25 The focus on Rawls's claims is important since the authors we are considering have no wish to depart from Rawls's contractarian assumptions in A Theory of Justice while reconstructing a cosmopolitan original position. Beitz for example emphasizes that “if one is inclined to reject Rawls's theory in the domestic case, then the case for a theory of global justice like the one suggested below is correspondingly weakened” (Political Theory and International Relations, 129). Thomas Pogge argues that his defense of contractarianism “is meant to show that Rawls offers a sound basis for progress in political philosophy as well as for political progress” (Realizing Rawls, 1). Simon Caney also believes that “Rawls's domestic theory of distributive justice … impels us to apply this theory globally“ (Caney, Justice Beyond Borders, 116).
26 Rawls, A Theory of Justice, 275. It is only too unfortunate that Rawls himself appears to have abandoned this important claim in his further discussion of global distribution in the Law of Peoples, where he introduces desert-based claims in assessing the causes of national economic development.
27 For the distinction between historical and patterned principles of distribution, see Nozick Robert, Anarchy, State, Utopia (Oxford: Blackwell 1974), 153–54.
28 Cosmopolitans make precisely this move when they focus on the “entitlements” of individuals and inquire on the causes of the wealth of particular societies. Simon Caney, recalling Brian Barry on this issue, argues that “there is no ground for saying that the member of the prosperous society can claim to be entitled to more” (Justice beyond Borders, 112). As I try to show below, he is too quick to make this statement. There may be such grounds, but if one consistently embraced the kind of contractarianism that cosmopolitans initially claim to embrace, they would not bear the weight that an entitlement-based perspective assigns them.
29 Beitz acknowledges this point when he claims, in response to critics, that his ideas “would lend support to an argument for some global redistribution to compensate for the uneven distribution of natural resources or to rectify past injustices” (Beitz, Political Theory and International Relations, 169). He doesn't seem to realize that the kind of principles one obtains starting from these premises are very different from the ones he initially tries to justify on contractarian grounds.
30 See, for example, Beitz, Political Theory and International Relations, 139; Hayward, “Global Justice and the Distribution of Natural Resources,” 360–61. Pogge explicitly uses the Lockean argument in justifying a global resource dividend in his “An Egalitarian Law of Peoples,” 200–201.
31 See the justification of this point in Nozick, Anarchy, State, Utopia, 162–63.
32 For a further discussion of how one could justify global distributive principles, starting from circumstances of justice that do not need to abstract from the parties' political membership, see my “Sufficiency, Equality and Power: A Statist Defense of Global Egalitarianism” (Paper presented at the Social and Political Theory Seminar, Research School of Social Sciences, Australian National University, December 2007). For alternative interpretations that only justify principles of assistance to burdened societies, see David Miller, National Responsibility and Global Justice, 163–200. Nagel Thomas, “The Problem of Global Justice,” Philosophy and Public Affairs 33, no. 2 (2005): 113–47 and John Rawls, The Law of Peoples, 106–118.
33 Pogge, Realizing Rawls, 247.
34 See Richards, A Theory of Reasons for Action, 290.
35 Beitz, “Cosmopolitan Ideals and National Sentiments,” 595
36 Hume David, A Treatise of Human Nature (Oxford: Oxford University Press,  1985), 486. Rawls in A Theory of Justice underlines how his own account of the subjective circumstances of justice “adds nothing essential” to Hume's “much fuller discussion.” As already emphasized, the contractarian cosmopolitans we are considering are also keen to emphasize that their account of the original position is simply an extension of Rawls's domestic contractarian account. For this reason, I assume that the relevance of circumstances of justice in constructing a contractarian-type of argument in favor of global distributive justice remains the same.
37 Rawls, A Theory of Justice, 109.
38 This objection to the cosmopolitan argument on the arbitrariness of political communities has already been made by David Miller, so I will not reassess it at great length here. See his National Responsibility and Global Justice, 62–68.
39 Ibid., 68. Miller is wrong to think that because it is difficult to identify a metric for equalizing opportunities between individuals, this defeats any alternative cosmopolitan argument for global distributive principles. What he fails to realize is that the issue of who is affected by specific distributive principles may be separated from the issue of whether there are global distributive principles at all. Indeed it is possible to solve the metric problem by simply substituting equal opportunity for individuals with equal opportunities for states. I have explored this issue in my “Equality, Sufficiency and Power: A Statist Defense of Global Egalitarianism.”.
40 Rawls, A Theory of Justice, 111.
41 Ibid., 113.
42 Ibid., 494.
43 Pogge, Realizing Rawls, 227.
44 Beitz, Political Theory and International Relations, 203.
45 Rousseau Jean Jacques, “Of the Social Contract,” in The Social Contract and Other Later Political Writings, ed. Gourevitch Victor (Cambridge: Cambridge University Press,  1997), 40.
46 Ibid., 80 ff.
47 Kant Immanuel, Toward Perpetual Peace: “A Philosophical Sketch,” in Political Writings, trans. Nisbet H.B., ed. Reiss Hans (New York: Cambridge University Press, 1991), 109.
48 For an excellent analysis of the difference, emphasizing the metaphysical requirements of Kant's Doctrine of Right, see Flikschuh Katrin, Kant and Modern Political Philosophy (Cambridge: Cambridge University Press, 2000), 185–89.
49 Kant, Idea for Universal History, in Immanuel Kant, Political Writings, proposition VII.
50 Kant, Toward Perpetual Peace.
51 Ibid., 104. For a more detailed exploration of this issue, see my “Sovereignty, Cosmopolitanism and the Ethics of European Foreign Policy,” European Journal of Political Theory, no. 7 (2008): 349-64.
52 Beitz, Political Theory and International Relations, 203; Moellendorf, Cosmopolitan Justice, 32–33, 37–38; Caney, Justice Beyond Borders, 115.
53 How the individual moral sense of justice arises is a separate issue that I assess in the following section.
54 See Kant, Toward Perpetual Peace, 114.
55 See for example Rousseau Jean-Jacques, “Abstract and Judgement of Saint Pierre's Project of Perpetual Peace,” in Rousseau on International Relations, ed. Hoffman S. and Fidler D. (Oxford: Clarendon Press,  1991) and Kant, Toward Perpetual Peace, 104. For a more detailed historical reconstruction of Rousseau's and Kant's analysis of the circumstances of international justice, see my “Sovereignty, Cosmopolitanism and the Ethics of European Foreign Policy.”
56 The English School analysis of international society relies precisely on these assumptions; see, for one example, Bull Hedley, The Anarchical Society: A Study of Order in World Politics (London: Macmillan, 1977).
57 Rawls, A Theory of Justice, 225.
58 Ibid., 222.
59 Ibid., 118.
60 Beitz, Political Theory and International Relations, 151.
61 Pogge, Realizing Rawls, 247.
62 See, for example, Nussbaum Martha, Frontiers of Justice (Cambridge, MA: Harvard University Press, 2006), 264–72.
63 Ibid., 266.
64 Rawls, A Theory of Justice, 119.
65 This would be the interpretation more in line with Beitz's statement that “it is not the case that we begin with an actually existing basic structure and ask whether it is reasonable for individuals to cooperate in it. Rather, we begin with the idea that some type of basic structure is both required and inevitable … and work towards principles the structure should satisfy” (Beitz, Political Theory and International Relations, 203). For an analogous statement, see also Pogge, Realizing Rawls, 139–41.
66 See Beitz, “Cosmopolitan Ideals and National Sentiments,” 595, 593, 596; see also Richards, A Theory of Reasons for Action, 278–82, 289–93, and Barry Brian, “International Society from a Cosmopolitan Perspective,” in International Society: Diverse Ethical Perspectives, ed. Mapel David and Nardin Terry (Princeton: Princeton University Press, 1998), 144–63.
67 Rawls John, “The Sense of Justice,” The Philosophical Review 72, no. 3 (1963): 293. The question of stability is at the heart of the third part of A Theory of Justice and was considered by Rawls one of the main issues motivating the reassessment of his first major work in Political Liberalism. In the latter, the problem of moral motivation is linked very clearly to the public culture of a particular political association: “[G]iven certain assumptions, specifying a reasonable human psychology and the normal conditions of human life, those who grow up under just basic institutions acquire a sense of justice and a reasoned allegiance to those institutions sufficient to render them stable. Expressed another way, citizens' sense of justice, given their traits of character and interests as formed by living under a just basic structure, is strong enough to resist the normal tendencies to injustice. Citizens act willingly so as to give one another justice over time. Stability is secured by sufficient motivation of the appropriate kind acquired under just institution.” See Rawls John, Political Liberalism (New York: Columbia University Press, 1993), 142. For a more critical appraisal of this question and of the transition from A Theory of Justice to Political Liberalism, see Barry Brian, “Rawls and the Search for Stability,” Ethics 105, no. 4 (1995): 874–915.
68 Rawls, A Theory of Justice, 454.
69 Jean-Jacques Rousseau, “Considerations on the Government of Poland,” in The Social Contract and Other Later Political Writings, 177–260.
70 Rawls John, “Kantian Constructivism in Moral Theory,” The Journal of Philosophy 77, no. 9 (1980): 515–72, 519.
71 I explore this issue in my “Statist Cosmopolitanism,” Journal of Political Philosophy 16, no. 1 (2008): 48–71.
72 For a first reference see Rawls, The Law of Peoples, and for endorsements of Rawls's claim, Reidy David A., “Rawls on International Justice, A Defense.” Political Theory 32, no. 3 (2004): 291–319; James Aaron, “Constructing Justice for Existing Practice: Rawls and the Status Quo,” Philosophy and Public Affairs 33, no. 3 (2005): 281–316; Freeman Samuel, “The Law of Peoples, Social Cooperation, Human Rights, and Distributive Justice,” Social Philosophy and Policy 23, no. 1 (2006): 29–68; Heyd David, “Justice and Solidarity: The Contractarian Case against Global Justice,” Journal of Social Philosophy 38, no. 1 (2007): 112–30.
73 See my “Statist Cosmopolitanism.”
Earlier versions of this article were presented at the University of Essex Political Theory Conference and at the conference on “The Social and the Political” at the European University Institute. I am grateful to participants at these events, as well as to Renato Caputo, Bob Goodin, Katrin Flikschuh, Peter Wagner, Jonathan White, the editors and referees of The Review of Politics for their excellent comments and suggestions.
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