Shmuel Nili’s Beyond the Law’s Reach? is a timely and important book. It is timely because—as global politics becomes more complex, and often more violent—we need a global ethics that focuses not on ideal theory but on practical normative guidance. It is important because it offers a genuinely novel and compelling vision of how that guidance might be provided. Nili’s focus on third-best dilemmas of justice—in which a just world is neither present nor immediately possible, and ethical guidance must therefore focus on moral agency within existing modes of injustice—shifts the conversations about global politics toward issues of complicity and entanglement with practices of violence and wrongdoing. I am, in this essay, not interested primarily in disputing Nili’s methods or his arguments, but in making his analysis more complex, and, I hope, perhaps even more useful. What I say here, in short, begins with a practical disagreement about the reality of criminal violence, but ends with a wholehearted endorsement of Nili’s reorientation of our conversations about global justice.
I want to begin by noting some of Nili’s conceptual tools. Nili uses the “shadow of violence” to describe the threats faced by the inhabitants of less democratic, and frequently less wealthy, states; the inhabitants of São Paulo or Moscow face an environment in which there is “pervasive uncertainty about one’s physical safety.”Footnote 1 These risks, moreover, are not effectively rendered exceptional or rare by an efficient legal system. Those who are the victims of crime in what Nili calls a “consolidated democracy”Footnote 2 can, after that violence occurs, “reasonably expect the government to vindicate their rights through the criminal justice process,”Footnote 3 an expectation Nili understands as the “hermetic seal”Footnote 4 of the law. In less democratic states, this hermetic seal is absent, which explains why so many of the more powerful residents of such states seek to send their money, or indeed themselves, abroad for the protection of the affluent democracies. Nili’s analysis focuses on the ethical dilemmas created by this entanglement between a democratic state’s relative safety and legal efficiency and the shadow of violence abroad. Given the benefits the world’s oligarchs and powerful criminals derive from the legal protections of consolidated democracies, what are the ethical constraints on how those democracies might act in the global arena? Democracies, as Nili notes, are not simply bystanders to violence abroad; by ensuring the safety and prosperity of those who engage in such violence, they are critical parts of an entrenched system that replicates injustice. How should such states act, given that these facts are both true and profoundly difficult to alter?
These questions, again, seem to be vitally important ones for political philosophers to answer; but I want to trouble Nili’s argument, by noting some facts about violence within some of the most affluent democratic states—focusing, centrally, upon the United States. I do this not because the United States is intrinsically more interesting than any other state, but because it represents a clear example of something I want to establish—namely, that something like the shadow of violence can be, and sometimes is, present even in consolidated democratic states. I want to make three related points about the United States. The first is that, in some contexts, the shadow of violence is, if anything, more present in the United States than it is in the less affluent countries Nili takes as his focus. The second point is that this violence is similar in its moral effects to those Nili discusses within foreign societies. What differences exist between political governance in the United States and violence in (say) Russia do not negate the moral similarity of that violence as experienced by the representative citizen of those respective societies. The final point is that this fact does not render Nili’s overall conclusions false; if anything, it demonstrates that the need for a subtle and complex analysis of moral entanglement is more pressing than we might have at first imagined. Nili’s focus on the tragedies of action within a morally blighted world is exactly the focus we ought to maintain. My response is intended, at most, to demonstrate that this world is even more tragic than we might have imagined.
The Shadow of (American) Violence
I want to discuss violence in the United States; my contention will be that, in some contexts, violence can be as predictably present in an affluent and reasonably democratic society as it is in the societies to which Nili ascribes the shadow of violence. My particular example will be the United States. I will do this under three headings: a focus on particular jurisdictions; on particular demographic groups; and on particular forms of criminal violence.
We can begin by noting a few facts about homicide rates and American cities. In 2021, New Orleans had a homicide rate of seventy-one per hundred thousand residents; this rate exceeded that of St. Louis, at sixty-eight, and Detroit, at fifty.Footnote 5 The city generally cited as America’s murder capital, Chicago, did indeed have the largest absolute number of homicides in 2021, at 836,Footnote 6 but its homicide rate per hundred thousand was lower than that of Detroit, coming in at 29.6.Footnote 7 These numbers are striking; but, crucially, they represent a strikingly more violent experience for the residents of these U.S. cities than the residents of the city with which Nili’s book begins—São Paulo, Brazil, whose homicide rate in 2022 was a mere 8.4 per hundred thousand residents.Footnote 8 Similar numbers can be ascribed to another of Nili’s examples of a society in which the shadow of violence has taken root—Russia. The Russian numbers are difficult to determine with any accuracy because the Russian state has made information gathering difficult both within and about Russia; but the homicide rate for Moscow, Russia’s largest urban center, was reported by the Guardian as being approximately 4.6 homicides per hundred thousand inhabitants.Footnote 9
This risk of violent death, moreover, is not distributed evenly across racial and ethnic groups within the United States. The murder rate in the United States as a whole for Black men—including residents of both rural and urban communities—is fifty per hundred thousand. (This is, it should be noted, at least eight times the homicide rate for white men in the country as a whole.)Footnote 10 Nili’s idea of the hermetic seal of law, moreover, is hard to square with the facts of racial differences in successful prosecution of the homicides of Black men. The clearance rate for the Baltimore police department—the proportion of cases that end in an arrest and referral to a prosecutor—fell to a low of 11 percent for murders of Black men in 2016, as compared to 36 percent for white victims.Footnote 11 Similar worries about a lack of police interest in the murder of Black men have been expressed in St. Louis, with many survivors describing brief or inadequate follow-up interviews by police—and, in some cases, no contact at all with the police force after reporting a death by homicide.Footnote 12
The final aspect of American violence I want to discuss is the epidemic of gun violence in schools. Gun violence in the United States is sufficiently common that, in 2019, death by firearm overtook vehicle accidents as the number-one cause of death for Americans under the age of nineteen. In the 2021–2022 school year, there were ninety-three mass shootings at American schools; that number is large when simply considered on its own, but, in addition to that, it is significantly larger on a per capita basis than that of any other nation. (By way of comparison, the country with the second-most school shootings between 2009 and 2018 is Mexico, which had eight school shootings; the same period in the United States saw 288 school shooting incidents.)Footnote 13 Here, too, the hermetic seal is often absent; school shooters often die in the course of committing their crimes, and it is therefore often conceptually difficult to punish the aggressors or to vindicate the rights of the victims in such cases. The impact of this violence on the lives of American children is difficult to overstate; the majority of public schools in the United States now hold regular active-shooter drills, in which students are presented with a simulation of what would happen in the event of someone entering the school and attempting to commit mass murderFootnote 14—and such drills are legally required in forty of the fifty American states.Footnote 15 American schoolchildren live, it would seem, under something very much like the shadow of violence—and that risk of violence, as well as the regular rehearsal of its possibility within the school, is now recognized as a significant source of anxiety, depression, and aversion to participation in school activities.Footnote 16
The Shadow of Violence and the Democratic State
My contention is that these forms of violence create—for a great many people within the United States—a life that is functionally under the shadow of violence, as Nili describes it. Many Americans live under a threat of violence, and have no particular expectation that such violence could be effectively either prevented prior to occurrence or vindicated after its commission. The shadow of violence, I would argue, is—from the standpoint of a great many Americans—as significant a fact of life as it is for the residents of São Paulo or Moscow. How could we differentiate these two contexts in which violence is a possibility?
One way might be to cite the relative strength of the democratic state were it to choose to effectively stop this sort of violence. Australia, for instance, chose in response to the Port Arthur massacre to ban the ownership of most firearms, with the result being that there has not been in Australia a repeat of the sort of mass violence now endemic in the United States. Here, though, there are two replies that might be made to this point. The first is that, from the fact that one state can effectively undertake a political strategy, it does not follow that all other states are equally free to do so. Nili’s work recognizes the fact that some forms of political injustice are so entrenched that we might treat them as provisional set points, in trying to understand present moral duties; and there are also aspects of the political history of the United States that make effective control of firearms more difficult in that nation than in Australia. The Second Amendment of the U.S. Constitution makes effective restraints on gun ownership vastly more difficult; and the Constitutional rights ascribed to lobbyist groups such as the National Rifle Association make it politically difficult for elected officials to propose or defend restrictions on firearm ownership and sales. It is worth noting that, even after such large-scale mass shootings as the one at Sandy Hook Elementary School, in which twenty children and six adults were killed, no effective restrictions on firearms ownership were made at either the federal or the state level; indeed, the only action on firearms taken by the present presidential administration (Trump) has been to defend the rights of firearms dealers, including those plausibly accused in the past of falsifying documents in the course of selling guns.
The ability of the United States to effectively respond to the sorts of crime discussed above, then, might be more apparent than real. The second reply to the assertion of state power, however, might be to question the relevance of that power to the moral phenomenon of the shadow of violence itself. For the individual who lives in the shadow of violence, it is seemingly a matter of indifference whether the state in question cannot effectively stop this risk of violence or could do so but has chosen not to. In either case, the shadow of violence is real, and its effects upon the freedom of the individual in question are the same. Whether the state could not maintain the hermetic seal or whether it could do so but refrains from doing what it can, seems largely irrelevant to the life of the individual resident; violence casts the same shadow, whether the state lacks power or political will.
These worries, I think, tell against Nili’s own response to these issues, as he seeks to differentiate the violence that is found within consolidated democracies from the violence found within weaker and more autocratic regimes. The shadow of violence in some less wealthy societies creates a risk that the state might be captured by the criminal, as was the case during Pablo Escobar’s control of the Medellín cartelFootnote 17; the American state was always more powerful than any particular American gangster—a fact that could not be said about the Colombian state and its most notorious cartel leader. In democratic societies, moreover, the exercise of democratic freedoms—such as protest and dissent—are not (or, at least, not always) put at risk, and so represent standing modes by which attention might be called to what violence persists within that democratic society.Footnote 18
These facts, though, seem to me somewhat irrelevant to the moral inquiry with which Nili’s book begins—namely, the impact of the shadow of violence upon those who live within that shadow. It is true that Pablo Escobar was in many respects more powerful than the state; but that does not negate the fact that neither the Colombian state then, nor the United States now, has the ability to negate the significant risks of violent death within its respective society. Americans in St. Louis might face random or targeted violence from members of a wide panoply of gangs, and Colombians in Bogotá might have faced violence from a well-organized and hierarchical criminal cartel; the risk of being killed, however, may be similar in the two cases—and the fear created by that risk similar in moral gravity. It is also true that—for now, at least—American citizens are able to protest against the violence they face, in a way that Russian citizens generally are not. When that protest, however, has no significant effect upon the shadow of violence itself—when it is ignored, or mocked, by the leadership of its government—then it is not clear that this is in any way an adequate response to the assertion that the shadow of violence exists. I find it difficult to avoid the conclusion that the shadow of violence exists within the United States as profoundly as it does in many other, less affluent or democratic countries abroad. And I find it equally difficult to avoid the conclusion that this shadow is as unlikely to be effectively eliminated by policy means within the United States during my lifetime, given the country’s constitutional and political norms.
Tragic Dilemmas at Home and Abroad
I began this essay by asserting the potential power of Nili’s analysis, and I want to return to that power at the conclusion. I want to argue, indeed, that Nili’s methods can offer us profound guidance, despite the above notes of disagreement with his application of those methods. The first thing I would note, in this context, is that nothing I have said above about the United States seems to imply the absence of the duty he asserts—namely, the duty to seek justice, within the constraints created by recalcitrant facts of political injustice, for those with whom our political and economic institutions are entangled. The United States, argues Nili, is an attractive site for both money and people extracted from autocratic or kleptocratic societies, and this attraction is largely grounded in the hermetic seal of its legal regime. Those fleeing to the United States believe that they, and their money, will be safe here—a fact that gives rise to moral duties in how the United States might react to such people and to such money. All this, though, continues to be true—even as we recognize that, for many people within the American polity, that hermetic seal seems broken to a significant degree. One way of looking at this, I think, is to render more complex the notion of that hermetic seal within any given society; for a wealthy yet violent society such as the United States, that seal is often quite strong and impermeable for money and for those who hold it—even as it is often absent or flawed for those who do not.
This suggests, I think, that the United States might have significant duties toward outsiders, duties that arise from its entanglement in international processes of financial wrongdoing—even as the United States itself might be functionally incapable of effectively overcoming the shadow of violence within its own borders. These duties are, in some ways, deeply tragic. They suggest that the United States might be obligated to do what it can for justice elsewhere—even as that same country will be unable, given its own political institutions and history, to avoid significant injustice within its own borders. This is tragic, I believe, in the same way that the third-best duties abroad in Nili’s analysis are tragic; they represent a necessary, but morally wrenching, acknowledgment of the constrained environment within which even powerful political agents operate—and the extent to which some undeniably wrongful facts cannot be effectively negated by skillful political action.
These facts might be brought out by noticing at least two ways in which recognizing the democratic shadow of violence might make Nili’s analysis more complex and, perhaps, more morally disquieting. The first is that third-best dilemmas might now be endemic within all politics, rather than simply a regrettable aspect of flawed or autocratic states abroad. The good political agents within the United States, I would argue, might have to recognize that some forms of injustice are so entrenched that the morally best response might be to focus not on transitions to a just world, but on effective political changes within an avowedly unjust one. So long as American political culture makes strong legislative action on firearms ownership a practical impossibility, perhaps the best response by American politicians might be to seek to make what is unjust less horrifying. Nili’s work, in short, might be used to identify tragic aspects of not only international politics but of domestic governance as well.
The second implication is that wealthy states may not be able to claim both financial and ethical superiority. Wealthy democracies often imagine themselves to be better than other countries, not only in their holdings of money, but in the nature of their political authority. This is, I think, often true—the democratic legitimacy of the United States is still, after all, greater than that of Russia. But it is, I think, uneasily asserted as a blanket statement for any country that allows so many of its citizens to live under the shadow of violence. It might be necessary, then, for a morally imperfect state to use what economic power it possesses in service of moral principles that it might find difficult or impossible to instantiate at home. Put more simply: There may be times in which even a violent country like the United States may be well positioned to use its power to restrain the violence of other countries. These ideas, naturally, would give rise to moral concepts like hypocrisy; but this, too, might be an extension of Nili’s ideas about third-best dilemmas of justice, in that we might need to accept not only limits and constraints on how we might make the world rightful but also limits and constraints in those moral agents on whom we rely in making what moral progress we can.
I am, in summation, exceptionally grateful to Nili for writing the book he has. I am confident that its ideas will be of use to those of us who care about international justice and to those of us who care about rightful action in a broken world in which justice might be too difficult to imagine.
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