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The Basic Structure and the Principles of Justice


This article develops an account of how economic and political institutions can limit the applicability of principles of justice even in non-relational cosmopolitan conceptions. It shows that fundamental principles of justice underdetermine fair distributive shares as well as justice-based requirements. It argues that institutions partially constitute the content of justice by determining distributive shares and by resolving indeterminacies about justice-based requirements resulting from strategic interaction and disagreement. In the absence of existing institutions principles of justice might not be applicable for assessing distributions or guiding individual action and institutional design. Hence, accepting a specific cosmopolitan conception of justice is insufficient to settle global distributive questions.

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1 Some recent examples of the statist position include Sangiovanni Andrea, ‘Global Justice, Reciprocity, and the State’, Philosophy and Public Affairs 35 (2007), pp. 339; Nagel Thomas, ‘The Problem of Global Justice’, Philosophy and Public Affairs 33 (2005), pp. 113–47; and Blake Michael, ‘Distributive Justice, State Coercion, and Autonomy’, Philosophy and Public Affairs 30 (2001), pp. 257–96; some prominent recent articles from the cosmopolitan side include: Abizadeh Arash, ‘Cooperation, Pervasive Impact, and Coercion: on the Scope (not Site) of Distributive Justice’, Philosophy and Public Affairs 35 (2007), pp. 318–58; Joshua Cohen and Charles Sabel, ‘Extra Rempublicam Nulla Justitia?’, Philosophy and Public Affairs (2006), pp. 147–75; Julius A. J., ‘Nagel's Atlas’, Philosophy and Public Affairs 34 (2006), pp. 176–92.

2 Rawls defines the basic structure of society as ‘the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation’ (Rawls John, A Theory of Justice, rev. edn. (Cambridge, Mass., 1999) p. 6).

3 I follow Rawls throughout the article in defining an institution as a ‘public system of rules which defines offices and positions with their rights and duties, powers and immunities, and the like’. See Rawls, Theory, p. 55. I also take it that an institution exists when a number of people regularly and knowingly follow its rules. In this sense institutions are constituted by the conduct of individuals upholding it.

4 I borrow the term ‘relational conception of justice’ from Andrea Sangiovanni, who defines relational conceptions of distributive justice as holding that the ‘practice-mediated relations in which individuals stand condition the content, scope, and justification of those principles’ (Sangiovanni, ‘Global Justice, Reciprocity, and the State’, p. 5). However, as he himself acknowledges, ‘the distinction between relational and non-relational conception is a distinction about the grounds of justice’ (p. 8), therefore I shall take relational conceptions of justice to be making a claim about the role of certain relations in grounding demands of justice. We shall later see that such conceptions do not immediately settle questions about the scope of principles, nor do they immediately determine the content of justice.

5 I follow in this description Rawls's list of the constituents of the basic structure. This structure includes, among other things, laws governing income and property taxation, fiscal and economic policy (Rawls, Theory, p. 6, and Political Liberalism (New York, 1993), pp. 258, 282–3).

6 See the discussion by Abizadeh, ‘Cooperation, Pervasive Impact, and Coercion’.

7 Note that non-relational theories are only a subset of cosmopolitan theories. There are relational cosmopolitan theories too. I will discuss how the argument bears on relational theories later in this article.

8 Sangiovanni, ‘Global Justice, Reciprocity, and the State’, p. 3. In this article I aim to remain neutral among competing conceptions of egalitarian justice with regard to both the currency of justice and specific distributive principles, insofar as they aim to reduce socio-economic inequalities. Much of its argument holds for both resourcist and welfarist theories of distributive justice, though one argument relies on Dworkin's specific resourcist version.

9 This premise is not uncontroversial. As we shall see later, G. A. Cohen rejects the claim that fundamental principles of justice should be able to guide action. I will consider Cohen's position in section VII. On the other hand, the stated premise is deliberately vague about the sites principles of justice can apply to. By referring to the capacity of principles to assess states of affairs or to guide individual conduct and/or institutional design, I mean to leave open the question whether principles of justice apply to only one of these sites or several of them.

10 Meckled-Garcia Saladin, ‘On the Very Idea of Cosmopolitan Justice: Constructivism and International Agency’, Journal of Political Philosophy 16 (2008), pp. 245–71, esp. pp. 256–9.

11 See also Rawls, Political Liberalism, pp. 266–7.

12 Dworkin Ronald, Sovereign Virtue (Cambridge, Mass., 2000), pp. 71–2.

13 Dworkin, Sovereign Virtue, p. 66. One consideration motivating this thought is Dworkin's reliance on a ‘norm of liberty’, requiring that measurement should be made on the assumption, to the extent this is possible, ‘that others would have been free to use the resources in question as they wished if these were theirs instead’ (Dworkin, Sovereign Virtue, p. 183).

14 Dworkin, Sovereign Virtue, p. 70.

15 David Miller suggests this point about Dworkin's theory. On the basis of this he goes on to argue against global requirements of justice, although, as we shall see, this conclusion does not follow. For his argument see ‘Justice and Global Inequality’, Inequality, Globalization, and World Politics, ed. A. Hurrell and N. Woods (Oxford, 1999), pp. 187–210.

16 This is so even if markets need to be supplemented with redistributive policies. Dworkin thinks justice requires this since the theory needs to account for differential natural endowments – talents and handicaps – as well.

17 See the accounts by Copp David, ‘The Idea of a Legitimate State’, Philosophy and Public Affairs 28 (1999), pp. 345, and Simmons A. John, ‘On the Territorial Rights of States’, Philosophical Issues 11 (2001), pp. 300–26.

18 By the vagueness of these rules I mean the fact that they admit of a significant range of borderline cases, where the application of the rule is unclear and subject to disagreement.

19 It might be asked, is it not possible to perfect these rules until they are precise enough to overcome indeterminacy? No, since as Timothy Endicott persuasively argues in the context of the vagueness of law, the use of vague evaluative standards such as ‘dangerous’, ‘careless’, or ‘reasonable’, and descriptive terms such as ‘income’ (for the purpose of determining the tax base), is necessary in order to be able to regulate a wide range of human activities while still being able to serve as a guide for the conduct of individual citizens and officials. See Endicott Timothy, ‘Law is Necessarily Vague’, Legal Theory 7 (2001), pp. 379–85. For a classic account of the vagueness of law, see Hart H. L. A., The Concept of Law, 2nd edn. (Oxford, 1994), pp. 124–36.

20 This indeterminacy can take two basic forms. First, we can hold with Hume that property rights are entirely conventional, in which case there is no way to give even an approximate account of a just property regime in the absence of relevant conventions. Institutions, insofar as they provide us with the requisite conventions, fill out the content of justice by specifying a determinate set of property rights. Second, we might hold with Locke that some kinds of natural property rights exist that can be defined in abstraction from existing institutions. However, as Locke himself recognizes, even in this case we would have to face indeterminacy about the interpretation of such rights at the margins, which can only be overcome with the help of institutions capable of providing an authoritative settlement. See Hume David, A Treatise of Human Nature, ed. Selby-Brigge L. A., rev. 3rd edn., ed. Nidditch P. H. (Oxford, 1740/1976), p. 489, and Locke John, Two Treatises of Government, ed. Laslett Peter (Cambridge, 1988), Second Treatise, ch. 9, sec. 124, pp. 350–1, ch. 11, sec. 136, pp. 358–9.

21 Rawls acknowledges this indeterminacy in Theory, pp. 176 and 318.

22 Waldron Jeremy, ‘Authority for Officials’, Rights, Culture, and the Law, ed. Meyer Lukas H., Paulson Stanley L., and Pogge Thomas W. (Oxford, 2003), p. 50.

23 See the general argument for the value of democracy along these lines in Waldron Jeremy, Law and Disagreement (Oxford, 1999). For an illuminating account of the moral significance of political institutions see Kis János, Politics as a Moral Problem (Budapest, 2008).

24 For an elaboration of this point with a focus on political obligation, see Waldron Jeremy, ‘Special Ties and Natural Duties’, Philosophy and Public Affairs 22 (1993), pp. 330, at p. 24.

25 Here I have in mind what Rawls calls a situation of near justice where principles of justice are more or less satisfied by the regime. See Theory, p. 310.

26 It might be objected that by making reference to the need for assurance in the face of disagreement, I introduce considerations extraneous to justice. Such considerations might be important in their own right, the objection would run, but they are immaterial for determining what justice consists in. This claim is very implausible, however. Even if we can define the collectively optimal ideally just scheme independently of assurance considerations, these considerations are relevant for evaluating alternative courses of action or states of affairs in non-ideal circumstances. Given the actual conduct of others, justice can be better approximated if one complies with scheme A rather than trying to follow any other scheme. Thus, unless one holds the implausible position that justice does not favor courses of action which better approximate ideal justice than alternative courses would, one has to accept that assurance considerations do affect justice.

27 In the disagreement case, we can know the collectively optimal ideal scheme. However, we do not know if one's individual actions that would be in line with this scheme are indeed what justice requires, given the actual conduct of others.

28 It is worth emphasizing here that the argument in this article does not turn on the lack of public verifiability of compliance with principles. The argument established not only that sometimes we cannot tell whether other individuals comply with principles of justice; it showed why in some circumstances it is impossible to know what justice requires even in foro interno. For an argument against the publicity criterion for principles of justice, attacking the verifiability requirement, see Cohen G. A., Rescuing Justice and Equality (Cambridge, Mass., 2008), pp. 349–54.

29 Rawls John, ‘The Domain of the Political and Overlapping Consensus’, Collected Papers (Cambridge, Mass., 1999), p. 474.

30 Rawls, Political Liberalism, p. 37.

31 For an explanation of why this is so, see Rawls, Political Liberalism pp. 54–8.

32 Rawls, Theory, p. 48.

33 For Cohen's position see Rescuing Justice and Equality, esp. chs. 6–8.

34 G. A. Cohen mounts this criticism against Andrew Williams's argument from publicity. See G. A. Cohen, Rescuing Justice and Equality, ch. 8, sec. 5.

35 Nagel, ‘The Problem of Global Justice’; Blake, ‘Distributive Justice, State Coercion, and Autonomy’.

36 Analogous considerations apply to the role of economic institutions in partially constituting principles of justice by defining fair shares of resources. Principles of justice may not be applicable among individuals who do not stand in the relation of being market actors in the same market.

37 Here I refer to what Rawls calls our natural duty of justice. An important feature of the natural duty of justice is that it is pre-institutional. For Rawls, this means the conjunction of two things: such duties apply to individuals regardless of their voluntary acts, and they apply to them prior to and independently of the rules of institutions. As Rawls puts it, the content of such duties ‘is not, in general, defined by the rules of [institutions]’ (Rawls, Theory, p. 98).

38 Note that we can make the central argument of the article in a relational context. In this case justice would be restricted to those individuals who stand in some special relationship, say to those who are fellow-citizens of a state, or to those subject to a common set of institutions. This is compatible with saying that the roles of institutions in grounding requirements of justice and in defining them are distinct.

39 Charles Beitz articulates this condition in Political Theory and International Relations (Princeton, 1979), p. 156. Arash Abizadeh argues that even if no just global basic structure is feasible, the scope of justice is still global. He claims that even if justice cannot be fully attained, it can be realized to greater or lesser degrees, hence justice directs us to employ the instruments capable of realizing it to a greater degree. See ‘Cooperation, Pervasive Impact, and Coercion’, pp. 340–1. However, my argument implies that without a basic structure it may not be possible to see what greater or lesser justice would consist in, and even if it can, it might not be possible to know how to go about realizing it.

40 Joshua Cohen and Charles Sabel convincingly argue that globalization has created a normatively relevant set of global institutions of an intermediate type. They show that in many areas of regulation, the making, interpretation, and application of rules take place ‘in global settings’ that perform these functions ‘with some de facto decision making independence from their creators’ (i.e. states). As a consequence, ‘there is a direct rule-making relationship between global bodies and the citizens of different states’, in which these global bodies impose and enforce rules on individuals worldwide. See Cohen and Sabel, ‘Extra Rempublicam’, pp. 165–75. Even though Cohen and Sabel focus on the normative role of these structures in generating global distributive requirements, my argument showed how institutional schemes conducting these governance functions can play a different sort of normative role, namely that of enabling the application of principles of justice by specifying them.

41 The debate between monists and pluralists about justice concerns this dimension. See Murphy Liam B., ‘Institutions and the Demands of Justice’, Philosophy and Public Affairs 28 (1999), pp. 251–91; Pogge Thomas W., ‘On the Site of Distributive Justice: Reflections on Cohen and Murphy’, Philosophy and Public Affairs 29 (2000), pp. 137–69; G. A. Cohen, Rescuing Justice and Equality; and Nagel, ‘The Problem of Global Justice’.

42 I would like to thank János Kis for stimulating discussions on the subject, and Norman Daniels for valuable comments on an earlier draft of this article.

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