POLITICAL LIBERALISM AND CAPABILITY ENTITLEMENTS By Steven B. Schoonover Jr. A DISSERTATION Submitted to Michigan State University in partial fulfillment of the requirements for the degree of Philosophy Doctor of Philosophy 2015 ABSTRACT POLITICAL LIBERALISM AND CAPABILITY ENTITLEMENTS By Steven B. Schoonover Jr. Political Liberalism and Capability Entitlements is a qualified defense of the Rawlsian political liberal approach to social justice. I defend two key Rawlsian ideas first, the claim that a reasonable citizenry is a necessary condition of a democratic soc iety and, second, the claim that a key feature of reasonable thinking about justice is focus on the design of major socio - economic institutions. I depart significantly, however, from Rawls concerning two features of political liberalism first, I abandon hi s account of international relations as it is laid out in Law of Peoples in favor of engagement with the work of Thomas Pogge in hopes of contributing to an account of what it means to respect institutional human rights in a globalized world. Second, I cri ticize the Rawlsian doctrine of social primary goods as a thin political liberal account of the good and argue in favor of the capability approach as a more reasonable replacement. As a whole, then, the present work is aimed at offering an account of social justice that retains certain fundamental elements of political liberalism but rethinks global justice in terms of capability entitlements. I argue that the particular conception of social justice that Rawls called justice as fairness should be recog nized as a member of the family of reasonable political conceptions of justice though it cannot be conceived as the most reasonable available conception. iii To my mother Anna for loving even when there were tears ACKNOWLEDGMENTS I take this opportunity to thank my dissertation committee Steve Esquith, Paul Thompson, Todd Hedrick, and Fred Gifford for their generous assistance and guidance during this project. I also would like to thank both Miguel Martinez-Saenz and Ivan Guajardo for ample and invaluable dialogue on the ideas in this volume. I feel blessed to count both men as friends and intellectual interlocutors. Finally, I thank my family for the various forms of loving support given to me over the years. Whatever the merits and failures of the present volume, its very existence is testimony to the basic Rawlsian insight that the exercise of talents never depends on our self alone. ivv TABLE OF CONTENTS LvIntroduction: Philosophy in a World of Crises Global Interdependence and It s 1 What Can Philosophy Do?....................................................................................................11 Chapter 1: The Inescapability of Justice .24 Marx on Capitalism, Justice, and 35 Effective Normative Pedagogy and the Logical Necessity of Justice 46 A 67 Concluding 70 Chapter 2: Political Liberalism and the Burdens of 73 Plural Valuation, Social Instability, and the Solution of Political J 84 Conceptions of Political Justice and the Justification of Overlapping 99 Collective Deliberation and the Normative Force of Overlapping 106 The Demands of Reasonable 118 Conclusi ..127 Chapter 3: Political Liberalism and the Duty of Background ..130 The Entitlement of Background 132 Discharging the Duty of Background ..142 160 Chapter 4: Political Liberalism, Global Justice, and Human 163 Causal Factors of Societal Wealth and 171 The Moral Relevance of National Opportunity to Avoid .183 Global Justice and the Responsibility of Developing 193 Hypotheses Concerning Current Global Institutional Violations of Human Rights..198 206 Chapter 5: Political Liberalism and Universal Goods 209 Constitutive Basic Entitlements and Conditions of Free and Equal 214 Means, Ends, and Enti 217 Entitlements and the Informational Space of Interpersonal 22Multidim ensional Processes and Outcomes: Agency to Well- .230 Addressing Criticisms, Recognizing Limitations, and Final ..237 245 vi LIST OF FIGURES FIGURE 1: GENERAL OUTLINE OF MINIMAL SOCIAL 215 FIGURE 2: PRIMARY ..2311 Introduction Philosophy in a World of Crises Global Interdependence and Its Crises It is true that our Earth is one world, but we so often hear such phrases that it is easy to miss their real significance. From famous musicians like Bono to philosophers such as Peter Singer, we are reminded that we are living an interconnected common life on a shared planet with a single fate. 1 The imperative, however, is to resist the ease with which such notions become cliché and to seize the central importance of their truth for ethical and moral thinking. At their core is the indispensable insight that what may initially appear as a local action or problem is likely bound up in complex and potentially hidden ways with global causes and ramifications. The reality we face today is increasingly one in which no particular event or happening can be grasped independent of its interactions and interconnections with a variety of seemingly distant events and happenings. The recent economic crises for example both the Great 1 Peter Singer, One World: The Ethics of Globalization (Yale University: Yale University Press, 2002). 2 Recession beginning with the 2008 bust of the US housing bubble as well as the current fiascos of European currency up to and including current debt crisis in Greece illustrate painfully has potentially catastrophic effects well beyond domestic borders. The perpetuation of these crises cannot be understood independently from the actions of western governments and private sectors that made high-risk economic decisions. 2 In this case of the 2008 crisis, these decisions contributed to substantial declines in economic growth within virtually all developing nations. To the extent these declines necessitated reductions in social spending and compromised the ability of national governments to fend for their citizens, it is western agents who are responsible for exacerbating global poverty and various other forms of deprivation and instability. As the report issued by the Stiglitz Commission has emphasized: This [2008 global financial crisis] is especially problematic for developing countries. For them the crisis can be seen as a negative externality, since they were not responsible for generating it but are now suffering from its adverse effects, reflected in lower output and employment. Within these countries, the impacts on the poorer strata will be long lasting if social spending has to be cut because of the adverse conditions. The seriousness of this situation is better understood with the following example: if, because of temporary cuts in social spending, some infants start to suffer from malnutrition, this temporal shock could affect them for their entire lives. 32 I take IMF President Christine recent statement that at least part of debt must be forgiven to constitute an admission that irresponsible lending occurred. 3 See Alejandro Marquez, Report of the Stiglitz Commission: A Summary and in The Financial and Economic Crisis of 2008-2009 and Developing Countries (Unctad, 2010), p.227. 3 The pervasive influence of thinking which emphasizes global causal factors as explanations for crises such as poverty is not a new theme. It has taken center stage in the work of myriad thinkers addressing topics of global ethics and morality. In his book World Poverty and Human Rights , for example, the philosopher Thomas Pogge argues that western nations are and have long been actively causing poverty across the world by constructing a global order of socio-economic interaction which predictably and systematically contributes to severe deprivation. 4 The rules which structure global cooperation not merely the pervasive effects of the Breton Woods Institutions or even bilateral and multilateral treaties, but also weapons sales, natural resource sales, and lending practices are clearly detrimental sources of influence concerning the internal political affairs of nation-states. The phenomenon of dictatorial rule, for example, in many poor countries cannot be divorced from the existence of an international order which guarantees the provision of weapons needed to seize and maintain power, the markets necessary to sell-off natural resources without the consent of citizens, or the financial ability to borrow large sums of money in the name of future generations. detail in Chapter 4, we can already agree that he is right to say it begs the question to explain poverty and human rights violations as the results of domestic causal factors such as http://unctad.org/en/Docs/gdsmdp20101_en.pdf 4 Thomas Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Cambridge: Polity Press, 2002). 4 corrupt elites, civil war, irresponsible spending, and so on. While these factors are exclusive reference to local explanatory factors fails to ask how these realities are themselves constituted by global context. The act of reifying local explanations rather than recognizing the dialectic between local and global levels is morally devious because it provides a way for those in rich countries to sidestep questions of our own moral culpability for the internal operations of poor countries. It provides what Pogge has called a herwise follow from widely recognized and non-controversial normative premises. The same causal web of global dynamics also frames the current challenges of ecological instability and environmental degradation. The scientific consensus that human activities including the emission of greenhouse gases are responsible for much of the warming observed over the past 50 years should be supplemented by the reminder not often enough said nor taken account ofthat rich nations do most of the polluting and have enjoyed its benefits while poor nations have and will incur environmental costs largely beyond their control in the form of weather events, reduced soil-productivity, and the spread of tropical diseases. 5 The fact that human beings share a common bed of ecological and natural resources one planet means that where 5 See Advancing the Science of Climate Change (Washington, DC; The National Academic Press, 2010). is a strong, credible body of evidence, based on multiple lines of research, documenting that climate is changing and that these changes are in large part caused by human activities. While much remains to be learned, the core phenomenon, scientific questions, and hypotheses have been examined thoroughly and have stood firm in the face of serious scientific debate and careful evaluation of alternative p.1 5 ecological exploitation occurs such activities have the potential to impose externalities on those outside national borders who may or may not have been privy to the benefits. Because global climate change is disproportionately the result of activities and decisions taken within countries that now enjoy the benefits of high economic growth, as many have suggested, the challenge poses a very large global free-rider problem. 6 Whatever the empirical extent of the challenges we face concerning ecological stability, the first thing to recognize is that there is an undeniably global dimension to these challenges. The general moral lesson that should be taken from these reflections is that our increasing global interdependence and interconnection create contexts of action in which harm and violence may be neither local nor perpetrated by individual, easily identifiable actors. As Slavoj Zizek has pointed out, the everyday phenomenological experience of violence presupposes some neutral, non-violent background against which a foregrounded violent act appears. 7 A specific act of murder, rape, or torture is visible as violence only on condition that it is perceived as a disturbance of a previously non-violent situation. The problem here is that the easy recognition of violence in its subjective form (i.e. committed by definite, identifiable subjects) fails to recognize the objective, systemic violence inherent in the very routine functioning of the global institutional arrangement itself. The perception that individual acts perturb an essentially non -violent backdrop is fundamentally a 6 See, for example, in The Economist; December 3, 2009. 7 Slavoj Zizek, Violence: Six Sideways Reflections (New York: Picador Press, 2008). 6 misperception. It is, rather, the normal functioning of the global order itself sustained as the culmination of the anonymous action of multitudes in which massive death, deprivation, and suffering regularly occurs with no clearly demarcated boundaries of responsibility. Global interconnection creates conditions in which the cumulative consequences of very distant actio ns are hidden within a web of complex causality but nonetheless impose tremendous burdens and harms upon human lives. Given the extent of human misery and deprivation which exists on the Earth today, it is perhaps the paramount challenge of the current situation to come to grips with the implications of this global interconnectedness and the extent to which objective violence is rendered a hidden, unproblematic aspect in the order of things. 8 Stable and significant departure from the status quo will likely require more or less widespread recognition of obligations toward distant others harmed by the regular operation of institutions from which we benefit and with which we participate. But even as the emergence of our global order creates new kinds of crises, it also poses new daunting challenges to effective political action through the traditional democratic power of nation states. The countries which suffer most immediately from economic and environmental crises often have little or no influence over the policy-decisions which generate them since these decisions are implemented by foreign governments. One 8 A useful statistical summary of perhaps the most severe horrors of the modern world are presented by Thomas Pogge in Politics as Usual: What Lies Behind the Pro-Poor Rhetoric (Cambridge; Polity Press, 2010), p.11. poverty continues unabated, as the official statistics amply confirm: 1,020 million human beings are chronically undernourished, 884 million lack access to safe water, and 2,500 million lack access to basic sanitation; 2,000 million lack access to essential drugs; 924 million lack adequate shelter and 1,600 million lack electricity; 774 million adults are illiterate; and 218 million children are child 7 reliable proof of the relative powerlessness of certain nations within the present situation is to look at the lack of diplomatic and legal resources commanded by poor nations within the central arenas of global decision-making such as the World Bank, the IMF or the WTO. As the International Centre for Trade and Sustainable Development reports, in the 15 years prior to 2011 there were 400 claims initiated within the WTO while only 30 of these were put forth by developing countries. 9 None of them were African nations. It is widely agreed that a major source of this problem has to do with the high expense of international lawyers needed to engage in the complex negotiations that establish rules of international trade. Indeed, as The Economist pointed out as far back as 1999: Poor countries are also hobbled by a lack of know-how. Many had little understanding of what they signed up to in the Uruguay Round. That ignorance is now costing them dear. Michael Finger of the World Bank and Philip Schuler of the University of Maryland estimate that implementing commitments to improve trade procedures and establish technical and intellectual-property standards can cost more than a development budget for the poorest countries. Moreover, in those areas where poor countries would benefit from world trade rules, they are often have missions at its headquarters in Geneva. Many more can barely afford to bring cases to the WTO. 10 9 See International Centre for Trade and Sustainable Development, Considerations in Managing Trade ictsd.org/downloads/2012 10 Reprinted in T. Pogge (2002) p.17 8 A consequence of normalizing such vast asymmetries in power between nation- states is the extent to which, when nations actually manage to become capable of exercising some modicum of democratic control, democracy itself comes to be perceived as a threat. In June 2008, when Ireland rejected the European constituti on in a popular referendum, the foreign ire at the of the Irish could not help but be noted. Just to mention a few responses: Axel Schaefer (SPD leader in the German Bundestag): We cannot allow the huge majority of Europe to be duped by a minority of a minority of a Wolfgang Schaeuble (German interior minister): cannot decide on behalf of 495 million Jean Daniel: countries made up of 490 million citizens 11 We are thus in a situation today in which not only is the exercise of internal democracy limited by global forces, but, when concerning some specific issue there is the limited possibility of its exercise, national democratic freedom is resented and feared by the outsiders whom are interconnected to its impacts. The emergence of (our present form of) global interconnection creates conditions under which even the appearance of what was perhaps always a facile endorsement of national self-determination becomes too costly to maintain. Even the formal democratic freedoms championed by the great defenders of capitalism from Hayek to Friedman are increasingly under threat. 11 Reprinted from Kristin Ross, for in Democracy in What State? (New York: Columbia University Press, 2010) 9 This tension created by our global predicament often manifests itself as a paralyzing reductionist and unacceptably nationalist attitude toward democracy as it did in a recent article by Washington Post contributor Anne Applebaum. 12 In discussing the failure of the Occupy movement to garner internal consensus on concrete legislative proposals, she notes: to produce sound legislative proposals is understandable: Both the sources of the global economic crisis and the solutions to it lie, by definition, outside the competence of local and movement without a coherent program is therefore not an accident: It reflects a deeper crisis, one without an obvious solution. 13 Applebaum, thus, acknowledges that the crises which motivate much of the Occupy movement are global crises and, as such, cannot be solved by the internal cooperation of domestic legislatures. Rather, what is called for is some sort of inclusive global cooperation between nation-states which at least secures the opportunities of nations to handle these problems effectively. But, almost immediately, Applebaum abandons such a possibility. Democracy works only within distinct borders and among people who feel a national democracy. And a national democracy cannot command the allegiance of a billion -dollar global hedge fund, with its headquarters in a tax haven and its employees scattered around the world. 12 I here elaborate more fully on a brief mention of position by Slavoj Zizek in his lecture Limits of 13 Applebaum, the occupy movement tells us about the limits of The Washington Post; October 17, 2011. 10 Applebaum fully recognizes the problem: The real sources of our global challenges lie in many casesw outside the purview of domestic actors and there exist no democratic means by which to address these crises or their effects. Nonetheless, after clearly identifying this tension, Applebaum proceeds to recommend that we passively accept the g lobal situation as beyond any possibility of popular control. She goes on to blame the Occupy protesters themselves (!) for their failure to recognize the limitations of democracy and to properly acquiesce in these realities. Unlike the Egyptians in Tahrir Square, to whom the London and New York protesters openly (and ridiculously) compare themselves, we have democratic institutions in the Western world. They are designed to reflect, at least crudely, the desire for political change within a given nation. B ut they cannot cope with the desire for global political change, nor can they control things that happen and spiritual benefits along with open borders, freedom of movement and f ree trade globalization has clearly begun to undermine the legitimacy of Western democracies. Global activists, if they are not careful, will accelerate that decline. Protesters in proc ess: it, further. directing democratic energy only to problems whose causes are local rather than global. In this way we respect to recapitulate her title the risk undermining the bit of democracy that we do have. Applebaum and her intellectual 11 kin, however, are a prime example of what will happen to democracy if we do not come to grips with the fact of increasing global interconnectedness. What she is missing is that as our modes of cooperation become increasingly global, every problem has a global dimension . In the context of this recognition the recommendation that citizens abandon the attempt to democratically influence problems whose significant sources are global is revealed as what it is: nothing more than a recommendation to abandon democratic citizens a role in formulating responses to the major crises of our time and justifies bureaucratic decision making by experts unaccountable to popular influence. The wager of those committed to emancipatory struggle is to endorse the exact opposite premise: in order to be effective, political strategy must take aim at the structures of global governance themselves capital itself. What Can Philosophy Do? What should be done in a situation characterized by global interdependence, systematic crises, widespread poverty and a general lack of democratic means of redress? In particular, what can philosophers contribute to a world wracked by these challenges? Certainly the reminder that all realities today are global realities has the potential to reorient action by opening our attention to the myriad interconnections and consequences at the core of political problems and by emphasizing the ongoing possibilities of our own complicity with objective violence and the undermining of 12 effective democracy, but it does not by itself take us very far toward answering the question of what is to be done. And, we can reject from the outset a notion that has tempted many a philosopher namely, the idea that philosophers can provide some sort of concrete blueprint for social vision. Instead, I start from the premise that the specificities of political strategy are best forged collectively from within the mess of political struggle. Nonetheless, we should be willing to seize and emphasize the ways in which philosophy can, does, and ought to guide political vision by forming the attention of political agents in particular ways and by creating a conceptual space in order to reason collectively concerning political questions. Perhaps the most radical philosophical contribution to politics is the reminder that the initial spontaneous perception of social problems the formal categories in terms of which problems are immediately or perceived can often be central parts of the problems themselves. The doxa or common sense which identifies a problem by framing it within certain conceptual coordinates may lend itself to the reproduction and ongoing maintenance of the underlying conflict or tension. I have already mentioned above one concrete example of this procedure, namely, what I take the problem of severe poverty strictly in terms of local causal factors effectively exacerbates severe poverty and unduly protects those who are potentially morally culpable in its reproduction (ourselves) by insulating from scrutiny a range of significant causal not that there are no domestic factors which work to cause poverty. His point is rather that the functioning and constitution of those local 13 factors themselves cannot be properly understood without appeal to the global terms of cooperation. Thus, the immediate perception of the problem of poverty in terms of the category of local cau sation is itself part of the process by which the catastrophe of severe poverty continues. In formal terms, we can state that a problem exists when there is a divide or tension between adopted goals and the current state of affairs coupled with obstacles for the achievement of those goals. It is the perception of this gap which motivates agents to formulate a strategy aimed at securing the desired achievement. We can say further that a problem may either be s olved as when some strategy eradicates the gap between goals and reality or else dissolved as when the concepts which constitute the very formulation of a problem are changed so as either to make the old problem disappear altogether or to change the old pr oblem into a new problem. This dissolution can be achieved by (1) reformulating the description of current states of affairs so as to alter the gap between reality and goal. In this way, the perceived tension between goal and reality can be resolved (we ma y argue the perception of a gap was false) or we may offer a new description of the gap (we may argue that there is in fact a discrepancy between goals and reality where one was not previously perceived). (2) We may reformulate the goals themselves. (3) We may offer new strategies in place of old ineffective strategies. Or, (4) we may offer a new account of the obstacles. intervention can be understood primarily as a combination of the first, third and fourth methods. His claim is that there is a previously unseen or neglected reality the global order which functions as a morally unacceptable obstacle to the goal of eradicating 14 severe poverty. This requires us to reconceive our strategy for eliminating global poverty namely, to devise strategies which take into account the functioning and reproduction of the global order. 14 He can be seen then as redescribing the current state of affairs in a way that highlights previous unseen obstacles and compels us to adopt new strategies for poverty alleviation. Keeping to examples from recent philosophy and its study of global poverty, the same brand of philosophical dissolution is illustrated in the work of capabilities theorists like Amartya Sen and Martha Nussbaum. The basic point of their work is that the normative categories and assumptions underlying dominant ways of measuring the success of development policy which for a long time and often still consists largely of vulgar economistic emphasis on Gross Domestic Produ ctobscure and deemphasize a range of valuable freedoms whose achievement would obliterate the passive helplessness that grounds the original and ongoing need for outside development assistance. 15 The essence of the capabilities approach is to remind political actors that certain misperceptions of what a quality human life is (and therefore misperceptions about what poverty and deprivation are) in effect help to reproduce the poverty we and our institutions may claim to oppose. Though this point will later be spelled out in 14 proposed Global Resource Dividend as well as his Health Impact Fund are both examples of strategies whose designs attempt to take this global reality into account. Descriptions of these strategies can be found in Chapter 8 of T. Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Cambridge; Polity Press, 2002), pps. 196-215. 15 Amartya Sen, Development as Freedom (Anchor, 1999); Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge University Press, 2001); Martha Nussbaum and Amartya Sen (eds), The Quality of Life (Oxford: Oxford University Press, 1993). 15 greater detail the capabilities approach is the primary focus of the final chapter in this volume we can say now that the enormous change prompted in development practice by the intervention of the capabilities approach from its rancor in institutions like the United Nations and its contribution to indices of well-being such as the Human Development Index (HDI) to its impact on Economics departments is among the clearest demonstrations that any rigid distinction between thinking and action is a painfully false opposition. Conceptual creation and revision reorients the symbolic space from which understanding and reasons for action emerge. These philosophical with - effects. 16 Yet another repetition of this sort of philosophical intervention occurred though perhaps without the same political success as that enjoyed by Sen and company concerning recent US healthcare debates. Those who followed that unfortunate discussion in mainstream media will recall a central objection offered against the Affordable Healthcare Act i.e. because a significant portion of healthcare would be publicly funded, there would be a need to decide which sorts of medical procedures and medicines would be available to whom, thereby creating the need to decide how scarce resources would be allocated. Some politicians such as Michelle 16 As the philosopher Lorraine Code emphasizes, we should seek to the metaphorics, images, symbolisms woven into dominant sociopolitical imaginaries: to examine how they work to shape and govern possibilities of being, thinking, acting; how they legitimate or preclude certain epistemic and other human relations, to one another and to the physical/natural/conceptual world; how philosophical systems reflect and reinforce these See Lorraine Code, Ecological Thinking: The Politics of Epistemic Location (Oxford: Oxford University Press, 2006), p. 7. 16 decisions would be made by small groups of unaccountable bureaucrats or so-called forthcoming legislation included provisions for rationing and whether these were a good idea. The crucial philosophical attempt to subvert the conceptual coordinates of this debate with the 2007 book Just Caring came from Leonard Fleck who had served on Hilary 17 others was that the problem of rationing did not stem from this or that particular piece of legislation. Rather, it arose from two simple facts: First, that there are finite resources for healthcare and second, that there are unlimited medical needs. As such, Fleck persuasively argued that the problem of healthcare rationing is simply inescapable. In a our conceptual blindness to the inescapability of rationing by claiming that we fail to see the current ongoing rationing of healthcare goods only because rationing is rendered imperceptible by the anonymous functioning of market mechanisms. us precisely how to make rationing decisions. The central importance of his work is in the way that if the lesson is properly heeded it helps us to reject the poorly formulated question which asks: Should we ration or not? Instead, that question is replaced with is justified 17 Leonard M. Fleck, Just Caring: Health Care Rationing and Democratic Deliberation (Oxford: Oxford University Press, 2007). 17 and how should those US debate might have looked had this point been absorbed into public discussion. Again, by altering the initial formulation of the problem, the philosopher helps to guide the quality of the answers that emerge from discussion without dictating the responses. And do we not observe the same basic gesture of conceptual intervention in many of the other big names of socio-political philosophy, for example, in the work of Michel Foucault? The generic political point of genealogical and archeological methodology is the reminder that categories which present themselves as natural and necessary focal points of action e.g. madness, sexual perversion, criminality, truth, knowledge and so onare born from a range of historical contingencies which can be identified and subverted. This is why Foucauldians (rightly) react with such horror at Richard self- 18 What is deemphasized in reading is the way that the subversion of dominant categories can be crucial not simply -understanding, but also for political organization and collective practice. What for example, that the critique of punishment as a concept and practice was certainly not institutions. 1918 Richard Rorty, Contingency, Irony and Solidarity (Cambridge: Cambridge University Press, 1989) 19 Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Pantheon, 1977) 18 This characterization of a certain form of radical philosophical intervention - dogma. Under a variety of pressures including the widespread suspicion that philosophical activity is essentially useless speculation, philosophers everywhere are prompted to seemingly all these abstract and esoteric debates about truth, justic e, and virtue when real people are these we should insist upon the radical philosophico - political lesson. The proper rejoinder to those hell bent on immediate response is to remind them that sometimes the best way to preserve the status quo is to act without challenging the concepts of our thinking and, conversely, sometimes the action most disruptive to the ordinary run of things is to suppress for a moment the pressure to act so that one may think. That is, very often it is precisely the action which poses as pragmatic that is in fact the lynchpin of the problem. As difficult as it undoubtedly is to do, we should resist the pressure to renounce theoretical inquiry and should instead insist against our detractors that theoretical reflection is perhaps the most practical thing to do in times like today where complexity seems to rule the political situat ion. As I have suggested above, political action without deep investigation and critique of our central categories that is, politics purged of its philosophical dimension is itself part of the global crises we are now facing. It is imperative to maintain c areful investigative scrutiny of the very formulation of our 19 of absolute importance to the reemergence of an effective emancipatory political practice. 20 In the chapters of the present work I attempt an elementary series of philosophical interventions which gathering together and extending a variety of ideas and arguments already in print can be understood as an attempt to reframe a handful of abstract elements potentially at work in our basic normative political views. I do not at least if we mean something like a small group of principles ordered in such a way as to yield an algorithmic decision procedure for basic political actions. Instead, I highlight a framework for normative reasoning by engaging in the negative work of rejecting popular questions (each containing a certain dogma) and attempting to put better questions into each of their respective places. The result is something much closer to a reasoned attitude or ethos toward the problem of justice, informed by a range of the most central challenges and some generally formulated solutions, rather than a full-fledged theory. In Chapter 1, I attempt to resist a certain question long presumed implicitly or explicitly by many on the right and left of the is not whether but which ideas of justice we need today. Though I spend disproportionate 20 This of course raises the crucial question of philosophical pedagogy as well as how to create and maintain philosophical institutions which preserve a space for dedication to the study of philosophy. There may be reason to believe this space is becoming increasingly rare with the ongoing intermingling of corporate and university in Conditions (New York, Continuum Publishing, 2008), pps.26- 32. See also my two co-authored articles with Miguel Martinez-Saenz: M. Martinez-Saenz and S.B. Schoonover Jr., the Student as Consumer in Academe , November-December 2014, pps.15-18. M. Martinez-Saenz and S.B. Schoonover Jr., New Era of in Liberal Education , Vol. 101, No.1/2, Winter/Spring 2015, pps.68-71. 20 in detail why the concept of justice is not simply a conservative juridical concept in the sense he claimed, I also extend my reflections in relevant ways to criticize the dearth of justice-thinking among contemporary radical theorists; a tendency I claim effectively amounts to conservative dogmatism on questions of justice. The conclusion is that some sort of view of justice is performatively inescapable for those engaged in deliberate social change. Some considerable amount of focus and effort, then, should be given to revising, developing, and disseminating a framework for justi ce-talk which might play a role adequate to our global political context. In Chapter Two, I consider in detail and argue in favor of the idea that all plausible justifications not in nature. This chapter delves deeply into the later work of John Rawls, but also gathers insights from other political liberals like Donald Moon, Burt Dreben, Martha Nussbaum, Charles Larmore and others. Though I differ with these thinkers in certain ways, I argue in favor of the idea that democratic citizens ought to see themselves as fundamentally entitled to receive and, therefore obligated to provide, justifications for justice claims which are shareable to all. I spend much of the chapter fleshing out also explaining why conceiving the basic entitlement of justice as a political justification for forms of power is deeply connected both to the democratic notion that citizens are free and equal and to the reproducible stability of democratic societies. This chapter sets the 21 general tone for the more qualified and detailed embrace of Rawlsian political liberalism in the Chapters 3 and 4. In Chapter Three, I build upon th e idea that we ought to promote a political liberal culture of reasonable citizens committed to living by shareable principles of justice. I defend the Rawlsian claim that a central aspect of developing a reasonable political liberal culture includes learn ing to lend primacy to the basic institutional structure of societies. I also respond to arguments put forward respectively by G.A. Cohen and Amartya Sen which claim that justice requires not merely commitment to just institutions (whether domestic or global) but also personal constraint of individual economic behavior well - beyond the proper design of institutions. I argue that they are correct that building a just society requires attention to interactional or behavioral factors, but that when properly understood there is nothing in Rawlsian institutional thinking that need make us insensitive to the importance of behavior. Indeed, the institutional approach is justified in large part, not on grounds of the irrelevance of existing behavioral patterns, b ut on their insufficiency for creating a just society . In Chapter 4, I depart from Rawls in crucial ways concerning the conceptualization of global justice and human rights. Much more promising than Law of Peoples pt to understand human rights as negative institutional constraints. I examine his claim that a global order which respects human rights is one constructed so as to avoid predictable basic deprivation. While I find much to agree with in his account, I argue that it should be modified so as to more adequately take into account domestic social responsibility. I claim that a global order 22 respects negative institutional duties insofar as it avoids depriving societies of the reasonable opportunity to design basic structures that provide the basic entitlements of background justice to their citizens. I explain several benefits that arise from this modest reformulation and end the chapter by pointing to areas of the global order that are strong candidates for violating negative institutional duties as I understand them. In the final chapter, I tackle the difficult question of how to understand basic entitlements. I begin with the conclusion I reach in Chapter 2, namely that the primary entitlement of justice is subjection only to those forms of institutional power with which you have reason to agree, and then ask how to understand the constitutive elements of this entitlement under conditions of reasonable pluralism. I explain why it is that Rawls rejected Utilitarian accounts of the good as pleasure or happiness and argue in favor of his doctrine of social primary goods over basic needs accounts. Nonetheless, there is a crucial problem with social primary goods what we will call the problem of conversion that motivate us to look for an alternative account. I argue that the capabilities approach pioneered by Amartya Sen and Martha Nussbaum is superior to the doctrine of social primary goods as a political liberal conception of the good and defend it against some objectors. I conclude with a brief look at the question of which capabilities are to be conceived as universal basic entitlements of justice. Thus, the present volume offers a line of thought which begins with the unavoidability of the idea of justice, highlights the need for developing a global political liberal culture dedicated to living by shareable principles of justice, defends the primacy of institutional duties and entitlements, defends the space of capabilities and 23 functionings within which to assess institutional entitlements, and concludes by offering some thoughts about how to understand which capabilities are most basic and therefore universal. In this way, I hope to arrive at a more concrete notion of human emancipation, one characterized in terms of specific kinds of freedoms to be protected by our major socio-economic institutions, while at the same time maintaining abstraction sufficient to avoid uncritical endorsement of the specific coordinates of the political situation. In short, if critics like Slavoj Zizek are correct to say that the reproduction of oppressive states occurs in large measure because we who live under them lack a language in which to describe oppression and with which we might convincingly articulate the emancipation in whose name we are guided to oppose the status quo, my hope is that the present reflections on justice offer something toward fulfilling this need for a global normative language. And, in this way, perhaps it is not impossible to contribute to the great challenge of gathering and guiding the international political action we human beings so desperately need. 24 Chapter 1 The Inescapability of Justice Talk Understanding a political situation is not simply a matter of paying close attention to points of deep political conflict, but also, perhaps more importantly, to areas of unquestioned consensus between otherwise disparate groups. This is sometimes hard to do, not least because of the tendency within parliamentary from those of friends and enemies. At the level of party politics, this process of obsessive differentiation approaches fever pitch as leaders compete for the allegiance of opposed political factions forms, not simply a basis for explicit political compromise, but also a largely implicit background, a certain schema that constrains our perceptions of what is desirable, what is necessary, and ultimately what is possible, within the domain of collective practice. 21 Historically, it is instructive to note the shifts of consensus that can occur even during short periods of time. Taking an obvious example, it was only a half 21 Recall that Deleuze and Guattari first formulated the notion of a disjunctive synthesis. That is, of two distinct disjuncts whose opposition works to form a synthetic unity. See Gilles Deleuze and Felix Guattari, Anti-Oedipus: Capitalism and Schizophrenia (Minneapolis; University of Minnesota Press, 1983) 25 century ago that political action was characterized by conflict concerning the basic system of economic organization. There were well represented commitments to communism, socialism, fascism, capitalism, anarchism, and so on. Contestation between these views constituted a significant if not the most significant point of political conflict, while, on the other hand, there was a widespread and virtually unquestioned assumption that politics would continue to occur against the background of a stable and basically imperturbable ecological environment. Yet, a mere 50 years later, the ideological situation has been reversed. Today, we are, with minimal and marginal exceptions, united game claim that society is at the end of history, a time in which political possibility is reduced simply to opportunities for piecemeal modifications of an essentially capitalist economic organization. Meanwhile, nearly everyone holds that ecology is a crucial pol itical category, from those advocating moderate approaches to recycling and left. 22 The paradox is that global capitalism increasingly appears to us as the only realistic form of socio-economic organization even as various crises from poverty, ecological instability, sectarian violence, and anti-immigrant racism up to and including growing slums, elite capture of political processes, and the privatization of threatening new biotechnologies explode onto the scene with growing regularity. The 22 See Slavoj Zizek, Mapping Ideology (New York: Verso, 1994) 2 6 transcendental question to ask here is: How precisely does such paradoxical consensus sustain itself? Michael Sandel has recently suggested that the de facto capitalist consensus is in fact motivated by an even more deeply shared belief in the impossibility of reasoned public discussion concerning normative issues, and especially, questions of justice. 23 In the contemporary imaginary, markets pose as mechanistic substitutes for moral reasoning. Capitalism serves as an apparently neutral solution to collective problems surrounding the use and distribution of resources. Free market transactions appear to operate wi thout appeal to a single set of privileged norms, values, and accounts of the good life. Sandel argues that this is an ideological misperception aided by the dominance of simplified versions of economic theory which offer accounts of markets that neglect t heir real and decidedly value - laden effects. More precisely, not only does the rise of capitalism promote a world of increasing commodification in which everything from upgraded prison cells to Congressional access is for sale, this commodification fundame ntally alters the norms and values attached to goods themselves. 24 The persistent myth among economists that buying and selling does not taint the goods being exchanged, Sandel argues, is false. The truth is that the very act of 23 Michael Sandel, What Money Buy: The Moral Limits of Markets (New York; Farrar, Straus and Giroux, 2012) 24 We should note that Sandel should be seen as a popularizer of this argument which itself has long been made by left - wing communitarians. Michael Walzer, for example, wrote the following passage more than 30 years ago: money seeps across all boundaries this is the primary form of illegal immigration; and just where one ought to try to stop it is a question of expediency as well as principle. Failure to stop it at some reasonable point has consequences throughout the range of distributions [of other See Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York; Basic Books, 1983),p.22. 27 buying and selling can operate as a source of corruption that transforms goods in potentially undesirable ways. This process is sometimes subtle. It is obvious, for example, that we cannot buy things like friendship or love. Selling these goods would simultaneously the m by changing their meaning or certain normative dimensions that make them what they are. We sense intuitively that the moment someone asks for money in exchange for something like friendship, it is certain that those people are not our friends. Similarly, an impartial judicial proceeding cannot be purchased because the monetary exchange itself would have guaranteed the partiality of the outcome. But market corruption can occur in more nuanced ways. Consider the attempt by the Swiss gove rnment to use economic incentives to motivate citizens to store nuclear waste in their neighborhoods: In 1993, shortly before the referendum on the issue, some economists surveyed the residents of the village [of Wolfenschiessen], asking whether they would vote to accept a nuclear waste repository in their community, if the Swiss parliament decided to build it there. Although the facility was widely viewed as an undesirable addition to the neighborhood, a slim majority (51 percent) of residents said they wo uld accept it. Apparently their sense of civic duty outweighed their concern about the risks. Then the economists added a sweetener : suppose parliament proposed building the nuclear waste facility in your neighborhood and offered to compensate each residen t with an annual monetary payment. Then would you favor it? The result: support went down, not up. Adding the financial inducement cut the rate of acceptance in half, from 51 to 25 percent. The offer of money actually the result was unchanged. The residents stood firm even when offered yearly cash 28 payments as high as $8,700 per person, well in excess of the median monthly income. 25The explanation for this decrease in willingness to store the nuclear waste, Sandel argues, is that the use of market mechanisms transformed the social meaning of the act. In the absence of economic incentives, citizens viewed their willingness to bring nuclear waste into their neighborhood as a civic duty in which they would have been shouldering national burdens in heroic fashion. But when the government offered to buy the service from them, the act changed into a simple commodity. It is this basic shift in the (perceived) ontology of the act from duty to commodity that positioned citizens to ask themselves about the appropriateness of the proposed sale price. Once this shift occurred, a behavior that might have been done for free appeared as something that would not be done for any amount of money. In particular, citizens claimed the offer of money made them feel as if they were being bribed as if money had crossed into a sphere of life that should have remained beyond commodification. Sandel uses such examples to emphasize an old point, namely, that the supposed neutrality of markets is in fact a mask for a very particular way of organizing economic distribution. Markets are not neutral tools able to distribute goods without affecting them; not mechanisms that simply allow individuals the liberty to choose according to 25 Ibid, 114-15 29 their own comprehensive worldviews. 26 Instead, the collective decision to utilize markets as a means for distribution dramatically alters the sorts of goods and practices which exist and are available. Markets may in fact push certain kinds of goods into extinction, especially civic and democratic goods. The point that I want to emphasize here, however, is si mply to remind us that it is only once the idea of market neutrality is revealed as a fiction that the necessity of the normative question concerning the desirability of markets can once again appear primary to us. If the capitalist consensus is sustained in part by a shared misperception that markets allow us to avoid the difficulties of collective reasoning about normative questions surrounding morality and justice, as Sandel suggests, then the antidote is to emphasize the inescapability and radical poten tials of a return to focus on normativity, morality, and justice. A negative proof of our ideological market faith, we should add, is the way that mainstream defenders of global capitalism resist any (resurgence of) normative questioning of markets by esch ewing appeals to the concept of justice wherever it appears in the public domain. As the former Fox News pundit Glenn Beck provocatively put the point in March 2010, justice and economic justice are code social justice, then go find another 26 This is, of course, the real problem with right wing libertarian thinking. In its essence, such libertarianism not only prioritizes individual liberty, but stipulates commodification and market exchange as the proper means of protecting that liberty without considering that these means are not neutral, but may themselves privilege and prioritize particular value - laden practices of liberty in a way that burdens the exercise of liberty by others . Libertarianism and the fantasy of market neutrality will be taken up more extensively at the beginning of Chapter 2. 30 27 Among such apologists for the status quo, the very concept of social justice whereas the free market is supposed to represent the impartial protector of universal individual liberty. The unobstructed implementation of market mechanisms bounded within the confines of a minimal state is made synonymous with justice. Injustice comes to signify merely deviation from the supposed pure procedural neutrality offered by the capitalist system. The task of collective reasoning about the design of social power is outsourced to what is ultimately an impersonal economic mechanism. 28The irony is that many of the radical leftists opposed by right-wingers like Beck have, for similar reasons, shared his deep suspicion of ethical and moral theorizing, and especially appeals to justice. A host of contemporary thinkers, claiming inspiration from the supposed purely scientific aspirations of the Marxian critique of capitalism, embody strict aversion to so- of normativity as ideological is shared even by many of who nonetheless define themselves in clear opposition to the economic materialism of Marx. 29 In my view, if there is to be a movement which poses a serious challenge to the routine functioning of global capitalism, it must find a way of opposing itself to this 27 http://www.christianitytoday.com/ct/2010/marchweb-only/20-51.0.html?start=2 28 The response of the political right to President claim throughout his second term that the wealthy ought to pay their of taxes, instead of igniting public discussion about principles of fair taxation, was met with predictable skepticism about the very idea 29 Michel Foucault famously once said that propose an alternative to the system is to support the 31 general rejection of public reasoning concerning issues of justice which forms the background agreement the disjunctive synthesis uniting those in apparent political conflict and which thereby stabilizes the inhuman consequences of our world order. This consensus is not only a serious impediment to the quality of democratic discussion, it is also highly counterproductive for leftists who are, in so far as we align with the outright rejection of normativity, effectively compelled, in spite of talk, to a certain reformist complicity with the supposedly neutral mechanisms of the market. In particular, the purging of normativi ty in any sophisticated form from the public domain is an explicitly conservative phenomenon because it hides inherent conflicts of interest which now pervade society and sacrifices the very narrative resources which might motivate, justify, and sustain opposition to the status quo. What should be seen is that justice-talk is inescapable in that its rejection is never an actual rejection, but merely is neglected, displaced, shifted to others, or taken over wholesale from existing social conditions. Radical leftist politics, then, should begin with a reinvigoration of belief in the emancipatory potentials of normativity as well as an attempt to build and transmit emancipatory narratives among the population. 30 30 It is important to note that the political right in the US has totally dominated this process since the 1950s. As John Roemer notes, dozens of organizations were formed in the 1950s and 1960s to further the conservative agenda, many with the explicit goal of forming coalitions between businessmen and conservative intellectuals. The ones which eventually became the major financiers of conservative thought are the Hoover Institution, the American Enterprise Institute, the Cato Institute, and the Heritage Foundation. These think tanks are to be distinguished from conservative organizations like the National Association of Manufacturers and the US Chamber of Commerce, whose role is to champion the interests of capitalists in legislation and the political arena 32 We can begin this task with the small step of highlighting the normative core of Marxian thought for a new generation of t hinkers and activists. At a time when Marxist theories of global capitalism and development are regaining some ground in popular consciousness and as we slowly return to the conviction that Marx is indispensable for leftist thinking today, reconciling the radical potential of normativity alongside Marxian insights is perhaps helpful. 31 In this paper, I contribute to rejecting the myth of an amoral Marx by arguing against a certain reading of his work made popular by many, but perhaps most explicitly by philosopher Alan Wood which claims that Marx was opposed on philosophical grounds to the very concept of justice. I argue that his explicit and implicit appeals to a conception of justice. On the contrary, though Marx offers a pointed critique of bourgeois rights, various implicit, performative, and sometimes explicit appeals to justice and the normative importance of human dignity pervade his project. The relevance of this historical point should be fully absorbed by contemporary political actors. But even apart from the scholastic exercise of unear thing the normativity lurking in the proper interpretation of Marx, my primary concern in the first section is to make explicit some lessons for appropriate justice-talk in our time from directly. The think tanks have a long-term view: to refine and propagate laissez-faire, anti-state ideology, in order and the Financial Journal of Ethics 16 (3):273- 303 (2012). 31 The first indicator of this reemergence is the sheer number of popular books now being written either with an 33 implicit conception of justice at work in Marx a thesis by now made standard by liberals like Rawls and Marxists like G.A. Cohen alikebut also that the form and content of comments on justice and rights can tell us some important things about how we ought to reflect on justice today. Finally, I conclude the chapter with a second section whic h advance s the stronger point that deliberate social change in whatever formcannot consistently and sustainably make do without some commitment and pedagogy aimed toward inculcating an idea of justice. This last argument is grounded in a reading of politics as an activity essentially concerned with the individual and collective exercise of power. The minim al feature of a political agent is her judgment abou t or practical orientation towa rd the exercise of power in particular, the explicit or implicit pronouncement on whether an exercise of power arises and/or is organized such that it gives what is due to whom it is due by whom it is due. To engage in politics is to take a stand on the appropriateness of power and, therefor e, to make a decision, whether reflectively, unreflectively, consistently, or inconsistently, concerning the desirability of certain actions and their resulting state of affairs. 34 necessarily underlying principles which, consciouslyor unconsciously, ground justification of the motivating judgment. I identify toward the end of the second section some implicit presuppositions of justice in is necessary as a matter of consistency, as part of a minimal reciprocation of respect toward others necessarily impacted by their realization, and as a form of pedagogy with the potential to motivate the radical subjectivity with which his work is primarily concerned. 35 carried out in sincerity, has the power to strengthen, weaken, or reorient existingforms of political commitment. That is, justice-talk, far from being the necessarily conservative phenomena suggested by its widespread dismissal among the radical left, contains a deep potential for a fundamental reorientation of the very implicit and explicit narratives which drive political engagements today. Marx on Capitalism, Justice, and Rights 32 Allen W. Wood, Marxian Critique of Philosophy and Public Affairs, Vol.1, No.3. (Spring, 1972), 244- 282.36 33 But the popularity of this view of justice derives from the implicit sociological assumption that state power operates as the central source of social power, pervasively influencing and directing all other aspects of society. Indeed, Hegel, for example, understood the development of civil society as occurring within the firm bounds set by state action. It is only according to such sociology, Wood claims, that the value of justice as an institutional concept becomes the paramount standard against which all of society is to be judged. As Hegel what 34 In the work of more contemporary thinkers like Thomas Nagel, the very concept of global justice is abandoned precisely because of the stipulation that justice primarily concerns state power and that there is no possibility of implementing any desirable form of global state. But a major tenet of the Marxian rejection of Hegel was the abandonment of Hegelian sociology in favor of a perspective in which the state is seen as one moment in the 34 G.F.W. Hegel, Philosophy of Right (Cambridge; University of Cambridge, 1991). Though my purpose here is not to challenge reading of Hegel, it is worth pointing out that there are reasons to think that even Hegel did not accept the ultimately positivistic account of justice that Wood attributes to him. Consider passages like the following: determination of right may be shown to be entirely grounded in and consistent with the prevailing circumstances and existing legal institutions, yet may be contrary to right and irrational in and for itself, like numerous determinations of Roman civil law which followed quite consistently from such institutions as Roman paternal authority and Roman 29. 37 State, the Law, Morality, Science, Art, etc. are only particular modes of production and 35 The identification of this general law of production which was of course the focal aim of Marxian philosophyallowed Marx to abandon old conception of history which neglects real relationships and restricts itself to high- 36 The real dialectical movement of production the transformation of nature according to human will which is itself bound by natural coordinates reshapes the natural environment, including c [human beings] satisfy their needs by productive activity , therefore, they are at the same time the state is seen by Marx as a bounded manifestation of these productive activities not vice versa and is guided by the needs these activities produce. This is what Marx or arise from the basic productive coordinates of society. 35K. Marx. and Philosophical (1844). In Tom Bottomore, ed. Karl Marx: Early Writings. London: C.A. Watts, 1963. 36 K.Marx, German In Tom Bottomore, ed. Karl Marx: Early Writings. London: C.A. Watts, 1963. 38 fundamental standpoint from which to judge all social reality is to adopt a distorted conception a necessary condition of justice, for example, we see nothing more than an endorsement of the contingent necessity of property given the dominant mode of production. This prompts Wood each mode of production measures justice of the act or institution is its concrete fittingness to this situation, in this productive Wood does not hesitate to spell out (and embrace) the odd implications of such a reading: the ancient mode of production, the holding of slaves was, as Aristotle argued, both right and Justice is suppos ed no longer to refer to pure rationality or intrinsically desirable consequences, as with deontological and utilitarian moral systems, but simply to the state design needed to maintain the prevailing mode of production. 39 emerges from the unique capacity of labor to produce value while beingconsumed. Yet at the moment labor is sold, the laborer does not yet have the potential fruits of this labor to offersince in order to create value it must be combined with the means of production from which she is separatedand so is compensated in market exchange according to the full existing value of the labor commodity. The laborer is, quite literally, given what she is owed. the concept of justice in this limited way. For example, in Critique of the Gotha Program of the proceeds of present-day distribution is And is it not, in fact, the only distribution on the bases of the present day mode of production? Are economic relations regulated by legal concepts or do not, on the contrary, legal relations arise from economic ones? 37But immediately following this passage Marx begins an attack on the very idea of i.e. administrative costs of production and the reproduction of the working class through education, healthcare and poor relief. Second, and more importantly, Marx identifies a problem in 37 K.Marx, of the Gotha in The Marx and Engels Reader (W&W Norton and Company, 1978),319.40 the very content an to assert that right of producers is proportional to the labour they supply; the equality 38 The problem, according to Marx, is that this measurement of equality arbitrarily privileges certain human beings over others, concealing the normative relevance of these privi supplies an right to the proceeds of labor creates the appearance class facto ent and thus the productive capacity of the workers as natural privileges. It is, therefore a right of inequality, in its content, like every The proper reading here is to grant thesis that Marx rejected the juridical concept of justice insofar as it is linked to the legal mechanisms necessary for certain failure juridical concept of justice exhausts work suggest that the concept of justice, when used properly, also applies to other subjects 38 Ibid, 321 41 besides the state and its laws to systems of production themselves and, especially, to the sort of lives that humans live under such regimes. First, the above critique of the way that a formally equal right can mask a substantive inequality already hints that some measurements of equality are more i mpartial than others. The problem with not really tell us what sort of lives workers lead since they do not account for different variables of natural and social endowment. Physical prowess, intelligence, how many children the worker has, whether she is married (and so on) are all factors which affect not only the amount of labor that the individual performs but also whether and how the resulting entitlement will c onvert itself into actual living. Thus, Marx objects that rights this suggests that properly formulated rights those which transcend bourgeois limitations will point more fully to human freedom to flourish. This is why Marx fact receive more than another, one will be richer than another, etc. To avoid all these defects, right would have to be u nequal rather than It would, therefore, be a mistake to read the above passage as an attempt to show that all accounts of right entail an unjustified partiality and are therefore unjustified. Marx is not insisting that there are no protections to which every individual is entitled and against which the design of society should be judged. The fact that equal consideration of differently endowed individuals permits or even requires inequality 42 within a certain space e.g. income or labor expectation does not mean there is no space in which justice requires the equal protection stipulated by particular rights. We might say the real question here concerns the appropriate space in which justice requires equality, or as Amartya Sen will put it a century after Marx of 39 In fact, Marx himself famously offers a candidate answer to this question when narrow horizon of bourgeois right emphasis), would establish a certain sort of equality, namely, equality within the space of needs satisfaction. A properly communist society, one which abolished the dominance of private property, ought to be governed, Marx insists, by a precise standard o each according to his 40 In order to proclaim that Marx believed all claims regarding justice are ideological, Wood must explain not only this most famous of Marxian principles of distributive justice but also the variety of places in which Marx uses normatively dense phrases to impugn the appropriation of surplus value as some 39 Amartya Sen, of Tanner Lectures on Human Values, delivered May 22, 1979 at Stanford University. 40 See K. Marx, of the Gotha , a higher phase of communist society, after the enslaving subordination of the individual to the division of labor, and therewith also the antithesis between mental and physical labor, has vanished; after labor has become not only a means of life but life's prime want; after the productive forces have also increased with the all-around development of the individual, and all the springs of co- operative wealth flow more abundantly only then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banners: From each according to his ability, to each according to his 43 have done that Marx uses these phrases only in his propagandistic mode of writing while trying to organize united opposition among working classes, but that he did not intend to have his rejection of capitalism rest on normative claims. But while it is agreed that Marx wanted to offer a scientific rejection of capitalism, the idea that Marx rejected all normativity as ideological is strained for several reasons. First, such an interpretation effectively reads Marx as an ethical conservative insofar as it account for the strange counterintuitive results outlined earlier namely, the endorsement of any social feature even outright slavery necessary for the bute to Marx the ultimately uncharitable idea that any legal institution necessary for a given historical mode of production is de facto just. Second, the narrow stipulation that justice is simply a juridical concept does not allow the pronouncement that certain modes of production are themselves unjust. But i.e. a process in which the activity of individuals produces a reality external to and uncontrolled by those very individuals contains at its core a normative objection to the idea that human beings ought to be determined by natural history independent of their own potential for freedom. Alienation is not simply a descriptive fact about society and the historical movement of the capitalist epoch. It is for Marx a morally problematic phenomenon which ought to be resisted because it reverses the active life of individuals into a 44 helpless passivity and in this way undermines the base of human dignity. 41 Whatever else communism is, it symbolizes resistance to alienation as an organizing principle of collective life and is therefore, as Terry Eagleton notes, a normative stance which champions the democratic power of individuals as a desirable alternative to the logic of capital. 42 It is no coincidence, then, that in The Communist Manifesto Marx and Engels define communist society as a democratic society in which individuals have control over the material means and processes of production that condition their existence. Supportive of this reading of Marx as emphasizing the normative importance of democracy and human flourishing, Cornel West has argued that Marx was deeply Letters on Aesthetic Education . 43 On this view, Ma rx can be seen as attempting to formulate for his time the values of many sided individual development, the potential for creativity, and the possibility of an alternative to merely instrumental relations with nature. Quoting West: Once you link the values of flourishing individuality, a profoundly Romantic notion, with the expansion of democratic operations and practices, I argue that you are at the ethical core of the Marxist project. As we know, Marxist - 41 Passages that attest to normative evaluation abound. Here is an unequivocal example taken from and Social which appears in The Marx - Engels Reader , p.133 - 135. possessing class and the proletarian class represent one and the same human self - alienation. But the former feels satisfied in this self - alienation, experiences the alienation as a sign of its own power, and possess in it the appearance of a human existence. The latter, however, feels destroyed in this alienation seeing in it is own impotence and the reality of an inhuman existence. To use expression, this class is, within depravity, an indignation against this depravity , an indignation necessarily aroused in this class by the contradiction between its human nature and its life - situation, which is a blatant, outright and all - embracing denial of that very (all emphases in the original). 42 T. Eagleton, Why Marx was Right , (Yale University Press, 2011) 43 C. West, Ethical Elements of Marxist Thought (New York; Monthly Review Press, 1993). 45 Communists, Marxist-Leninists and so forth have subverted, bastardized, violated and undermined such ethical claims. But when we look at Marx himself as a thinker in nineteenth-century Europe, driven deeply by these ethical values, although never wanting to be viewed as a moralist he is concerned about being scientific we know that these ethical values are deeply inscribed within his own project, and then it seems to me that we recognize that those values have much to say to us. 44 to claim capitalism is just he is offering a sociological description of the type of ideological consciousness that predominates under capitalism as well as the juridical conception of justice expressed by legal systems necessary for capitalism. To reject the ethical dimension of Marxist thought is to turn Marx into a postmodern conservative of sorts, to implausibly explain away the explicit ethical language he used, and to sheer him from his own intellectual formation. More importantly, it is to align Marx with certain positivistic trends in economics and to dismiss his emphasis on the importance of human flourishing and democracy in a just society. It is this radical normative standa rd of human flourishing that is seized upon by those attempting to reinvigorate Marx in the mid-20th century including Frankfurt school figures like Adorno, Horkheimer, and Marcuse. Further, as I will emphasize in Chapter Two, the focus on human flourishing and democracy that we find in Marx along with an extended and constructive revaluation of merely instrumental means such as state power, income, and resources 44 C. Indispensability Yet Insufficiency of Marxist in The Cornel West Reader (New York: Civitas Books, 1993), 223. 46 has been reinvigorated within certain important contemporary trends in development ethics. Effective Normative Pedagogy and the Logical Necessity of Justice - Talk But even if we have presented strong reasons to think Marx held and employed an implicit view of justice in his work, it might still be claimed that such a conception is essentially superfluous to his thinking and, therefore, potentially tangential to certain kinds of co ntemporary radical political movements. The fact Marx held a conception of justice does not show that holding a conception of justice is necessary or desirable for motivating and practicing activities aimed at deliberate social change. There are several wa ys of defending the idea that politics does not entail appeal to the idea of justice. One way of doing so is to claim that the need for a conception of justice arises only under certain social conditions which may be abolished. Some Marxists have held, for example, that a properly communist society would unleash productive forces in such a way so as to eliminate the scarcity, conflict and division that make necessary an appeal to principles of just distribution. Even Hume had claimed that the concept of jus tice is required only under certain circumstances including conditions of moderate scarcity in which resources are neither so plentiful as to make possible the satisfaction of all 47 existing desires nor so few that all attempts at cooperation break down. 45 But what if these conditions are endemic only to capitalist and pre-capitalist economies in which some class is reduced merely to ownership of their own labor power and must sell those productive capacities in order to survive? In such economies, in order to convert labor into production, labor-time must be coupled with the means of production owned exclusively by capitalist classes. Is it not the case, this line of thinking continues, that scarcity of the means of production under capitalism guarantees that terms of cooperation between owners and workers are formulated under conditions of an asymmetry of power? Specifically, the systematic separation of labor from access to scarce means of production entails that workers must pay a fee namely, the surplus value they produce in order to access the means of production. Insofar as economic scarcity grounds this relation of power, communist society is supposed to transcend the possibility for unequal terms of cooperation and, indeed, the need for terms of cooperation altogether. Marx himself is sometimes thought to have seen economic scarcity as a temporary condition which results from capitalist limitations on productivity imposed by the asymmetry of class- power. Once the dominant class relations are transcended, so this story goes, so too is scarcity and the need to determine what is owed to whom by whom. In this way, society is supposed to move beyond the need for a concept of justice. The communist 48 project to end economic scarcity would have abolished not only class relations but also the need for an account of just distribution. 46 Here, however, several critical responses should be emphasized. First, historically speaking, it seems radical thinkers should drop entirely any sentimental nostalgia for the virtues of 20th century communism and fully admit that we have not yet found a way of unleashing productive forces at the level of magnitude initiated by capitalist economies. Every actually existing attempt to abolish money, private property, and market relations has ended not only in the reassertion of direct brutal hierarchical control, but has also failed to create economic conditions in which production is geared toward the needs of the population. 47 The honest admission of this failure alone is reason to be highly skeptical not only of the possibility of creating an economy which surpasses capitalism in productive capacity, but is also reason to be skeptical of the possibility of creating an economy which eliminates scarcity as such. Perhaps it can be done, but there is no evidence that any hitherto imagined economic arrangement contains this potential. We should especially purge ourselves of the idea 46 There is, of course, a good case to be made that Marx and Engels never actually believed that conditions of scarcity could be entirely transcended. See, for example, John Elliot, and Engels on Communism, Scarcity, and Division of in Economic Inquiry, Volume 18, Issue 2, 1980, p.275 - 292. See also John Bellamy Foster, Ecology: Materialism and Nature (New York; Monthly Review Press, 2000). 47 Amartya Sen has emphasized that often this failure is in large part caused by an absence of mechanisms that would enable information to be transmitted from stakeholders to their representative decision makers a task which might have been helped by markets and/or democratic government. He claims this informational stopgap was part of the reason for the massive famine which accompanied Great Leap Forward. See Amartya Sen, Development as Freedom (New York; Anchor Books, 2000). 49 that a slightly modified Soviet, Cuban, or Chinese communism would have done or could do the trick. But, in addition, the very idea of eliminating scarcity altogether is likely a bad finite planetary resources the desire to unleash productive forces is itself an ultimately catastrophic vision. By the 20th century human beings had beg un to take seriously the idea that human freedom can only be exercised within the fragile coordinates of an eco - system which may itself be undermined and destroyed by the exercise of that freedom. Adequately taking this insight onboard means, then, we should be skeptical not only of the idea that we could ever construct an economy whose productivity outpaces capitalism, but we should also question the very desirability of such an economy. As al amount of resources that the human economy can consume from the ecosystem that contains it; for the ecosystem both as supplier of resources and as absorber of waste products is itself limited. The earth ecosystem is finite, non - growing, and materially c 48 A genuinely human economy 49 as Marxists like John Bellamy Foster claim that Marx already knew is not one that fully unleashes the means of production without careful consideration of the effects of productivity upon life (thereby potentially posi ng a risk 48 Herman E. Daly, Value Added, Physical Transformation, and in Ethics of Consumption: The Good Life, Justice, and Global Stewardship (London: Roman and Littlefield Publishers, 1998) p.19 - 27. 49 Or, perhaps we should say a genuinely person - oriented economy in order to signal the importance of non - human animals and species. 50 to the conditions of life as such), but one which produces in accord with the material conditions of the legitimate interests of present and future generations. Within such a finite context, some sort of justice-talk is inescapable since a sufficient feature of a concept of justice is the principled determination under conditions of material finitude in which not all existing desires can be satisfied of what is owed to whom by whom. But even in the unlikely scenario that human beings somehow manage to end scarcity, by, say, the invention of transportation and communication technologies that enable cheap resource extraction from other planets, such an event would not end the need for justice-talk. As John Rawls puts it, apparently with certain Marxists in mind: are no conflicting demands and the wants of all fit together without coercion into a harmonious plan of activity, is a society in a certain sense beyond justice. It has eliminated the occasions when the appeal to the principles of right and justice is theory of justice has an important theoretical role: it defines the conditions under which the spontaneous coherence of the aims and wants of individuals is neither coerced nor contrived but expresses a proper harmony consistent with the ideal 50 Even the end of conflict concerning scarce goods is not a sufficient condition of justice. As writers like Aldous Huxley knew quite well, one might imagine a society 50 John Rawls, Lectures on the History of Political Philosophy (Cambridge: Harvard University Press, 2007). Notice here that Rawls takes leave of the Humean account of the of and thereby reconciles his rejection of Utilitarianism. Justice has to concern more than the coordination of existing desires, since for Kantians like Rawls, desires indicate desirability only insofar as they have been achieved through an appropriate formative process, namely, within liberal institutions that prioritize the right over the good. 51 that has achieved a very high level of stability by satisfying as in Brave New World the existing desires of the population, while nonetheless doing so within a social context that we spontaneously perceive as unjust. As Huxley notes in the introductory essay to h is Brave New World Revisited , In Russia the old - fashioned, 1984 - style of dictatorship of Stalin has begun to give way to a more up - to - date form of tyranny. In the upper levels of the hierarchical society the reinforcement of desirable behavior has begun to replace the older methods of control through punishment of undesirable certain areas they are at liberty to think and do more or less what they like. Punishment awaits them only when they stray beyond their prescribed limits into the realms of ideology and politics. 51 The point here is that the effective coordination of existing desires pace utilitarians like Hume cannot be the lone standard of justice since the very production of desires can be the site of injustice. The society of Brave New World should be read as a demonstration of how it is that the end of conflict and the achievement of happiness can be fully established under highly coercive conditions problematic from the perspective of justice and human freedom. The point then is not simply to critique certain crude forms of Utilitarianism but also to reject more generally the idea that the mediation of conflict is synonymous with justice. any kind o f harmony or consensus either in the soul or in the city, because there never will 51 Aldous Huxley, Brave New World Revisited (New York: Harper Perrenial Modern Classics,2006). 52 S t u a rt H a m p s h ire, Ju s t i c e i s C onf li c t ( P r i n c e to n : P r i n ce t o n U n i v e r s i t y P re ss , 2001) 52 should nonetheless stress that even if such harmony were possible it would not by itself be sufficient for justice. 52 Rather, insofar as justice demands individual or social harmony, it is a certain kind of harmony i.e., a consensus that arises from certai n conditions and in a certain way. As right of conflict exhausts the demands of justic e even were both possible. It follows that insofar as Marxists (and others) believe that revolutionary struggle toward peace and abundance can serve as a reason to forgo normative reflection on the nature of justice, they are painfully mistaken. Indeed, pe rhaps inattentiveness to these features of justice by Marxist - inspired revolutionaries played some considerable role in the miserable failure of their revolutions. Crucially, this also means that political philosophy should not simply emphasize the instability of global capitalism. Leftist intellectuals often seem to think that if the normal functioning of capitalism generates contradictions which disrupt the circuit of production, the emergence of crises themselves will necessarily create opposition to the status quo entirely in lieu of systematic normative presuppositions. Perhaps, as some have suggested, this belief that moral persuasion is superfluous in the face of the catastrophic tendencies generated by global capitalism is even the reason Marx did not write systematically on the topic of justice. But this reasoning neglects two points: First, 53 R i c ha rd Ro r t y , U n i v e r sa li t y a n d Tr u t h i n R or t y an d H i s C r i t i c s ( O x f o r d : B l a c k w e ll P ub l i s h er s , 20 0 0 ) , 2. 53 even if it were true that the crises of capitalism motivate some segment of the population the so - called revolutionary subject to overthrow the capitalist arrangement, this would not preclude the need for justice - talk. On the contrary, a specified notion of justice helps identify the outlines of a desirable social target by limning the foremost concerns to which the new society ought to be attentive. Even were we to grant that global capitalism contains an inherent instability, the political goal cannot be simply the creation of a stab le order, but one whose creation is guided by a certain general roadmap of justice. Again, conceptions of justice characterize the most sacred general goals of society by outlining principles according to which we reason about what is owed to each individu al by whom. In so far as political action deliberately aims toward achieving a change from the present state of society, such movements cannot occur without some principles that justify a vision of society more desirable than the status quo. Such a concept ion is a minimal requirement necessary to provide a real target for strategy and tactics. Here, we can concede a point to liberals like Richard Rorty: is impossible to aim for something unless you can tell if you are 53 The idea of justice is inescapable because it provides precisely such a general standard. Second, in any case, it is clear that traditional Marxist theory has hugely underestimated the stability of capitalism. By now there is voluminous literature on the flexibilit y and adaptive capacities inherent to capitalist economies from the Frankfurt 54 culture industry sublimates revolutionary energy that might have otherwise been directed at destroying the economic apparatus up to and including conditions for the possibility of - economies. 54 Among the most important contributions to a theoretical explanation that accounts for the ongoing stability of capitalism is the contemporary ideological analysis offered in the triad of Alth usser Foucault Agamben whose work, respectively, outlines the rise of biopolitics. The crucial notion here is that of the dispositif (or apparatus) which pure activity of governin g without any foundation in being realizes itself. It is for this reason that dispositifs always have to imply a process of subjectivation. They have to produce their subject." 55 The key point of these thinkers, therefore, is that while cognitive features of particular subjects include categories experienced as natural and non - contingent madness, criminality, sexuality, etc. these features of subjectivity may in fact be contingent productions of particular dispositifs. These categories become operative or A particular interpellation governs by foreclosing among subjects the experience of certain possibilities. The task of freeing those possibilities then becomes one of conducting an archeological or genealogical investigation which can uncover the contingent social 54 Naomi Klein, The Shock Doctrine: The Rise of Disaster Capitalism (New York: Picador,2007) 55 Giorgio Agamben, What is an Apparatus? And Other Essays (New York: Stanford University Press,2009). 55 sources that enables an apparatus to reproduce not limited simply to Ideological State Apparatuses as in Althusser but with the full complexity of production found first in Foucault and then throughout the work of Agamben. What apparatus what dispositif is particular to and explains the sustainability of global capitalism? I have already argued that part of this story is widespread moral skepticism, the false belief that markets function as value - neutral means for distributing social goods which would allow us to organize society without arbitrarily privileging certain value judgments over others, and the misplaced emphasis on pseudo - Marxian tropes of instability and the end of sc arcity. Agamben argues instead that in the contemporary world we are interpellated within a process of desubjectivation which negates concrete beliefs but, paradoxically, leaves subjects without positive belief - content. We subjects of global capitalism are administered to by complex political organizations aimed at biological maintenance but we ourselves are increasingly deprived of any positive symbolic ideological content. Our status as desubjectivized , he claims, is today can motivate us, but instead that all such comprehensive worldviews communism, socialism, anarchism, fascism, and so on appear to us as empty absurdities likely to do more harm than good. Even explicit supporters of capitalis m rarely identify directly with global capitalism indeed it is quite fashionable even among the corporate media to point out the evils of capitalism but we instead tend to arrive at endorsement of the status quo through a negation of all other possibilitie s. Capitalism appears as the least 56 evil only by a process of rejecting other possibilities as impossible. The political implication is that pragmatic piecemeal reform insofar as contemporary capitalism leaves any room for democratic politics appears to us a s the only viable political strategy. The point these thinkers emphasize, however, is that this - ideological, of production. The inability to subjecti vate ourselves on behalf of a new vision of possibility is a deeply conservative result since it effectively strengthens the status quo by removing the motivation for any and all revolutionary opposition. When reduced to bare life, the revolutionary willingness to die in the service of a cause is obliterated. The lesson that should be emphasized is that our so - called post - ideological era this period of history characterized by the death of all Big Causes and the overwhelming emergence of pragmatic pol itics functions as an ideological reinforcement of capitalist modes of production. 56 Let us suppose for a moment that this is correct. Let us suppose that social processes increasingly produce postmodern subjects who are spontaneously skeptical to the status quo. Does not the problem then become how to resist the de facto conservatism of our postmodern zeitgeist by, first, emphasizing the way that avowed skepticism of metanarrative, far from being a gesture of freedom, has become complicit at the level of action with the reproduction of unfreedom? Precisely, enacting an ironic 56 This is the point, for example, emphasized in work maybe even more than in the work of Agamben. 57 distance toward universal concepts and accounts does not enable neutrality, but itself grounds a particular form of politics quite amenable to the inhuman effects of capital. After this point has been absorbed, is not the second task to reimagine metanarrative in a way that interpellates accounting for this unavoidable relation between language and action? It is in this context that self-proclaimed Communist Costas Douzinas challenges Alain Badiou for his dismissal of both justice theories and, more specifically, human rights discourse. He does so on two grounds: First, the longing for the revolutionary Event which characterizes the work of Badiou fidelity to the moment when dispositifs 57 are suspended and actively broken in order to form a new hegemonic order presupposes the emergence of a militant class who actively works for the overthrow of the current paradigm. But Badiou writes as if militant conversion to a cause can occur without normative preparation. He writes of St. Paul, for example, as if and supported by norms and beliefs pre-existing the dramatic act and leading to their 58 But the revolution of Paul does not emerge ex nihilo. Though little is known of Saul of Pharisees prior to his transformation, his preparation for conversion can hardly be separated from his concrete life experiences, his 57 He does not use this word, but the notion well-captures his meaning. 58 Costas Douzinas, On Communism and in The Idea of Communism (New York: Verso 2010), pps.81-100. See also Alain Badiou, St. Paul: The Foundation of Universalism (New York: Stanford University Press, 2003) 58 those traditions of the elders which culminated in the 59 Badiou of course fully recognizes that the emergence of militant revolutionaries requires a process Forever But here we have a new operation: How can we be prepared for a political event? How can we believe in something which is really a political event and not a fact of the stat e of history? Generally, in those acts we live in a sort of political activity. We accept the general laws of the state as a necessity. To anticipate the creation of the new possibility, the possibility which is not the simple development of the state of f acts, at least at an intellectual or ideological level, we must have an idea of the possibility, a general idea of the possibility of a different possibility. We have the ideal of the formal possibility of other possibilities. 60 We should fully agree with Badiou on this point. In order to prepare for the a is possible not only can make a diff erence to political practice, but that specific alterations are necessary for the emergence of politically dedicated militants. Stated simply, human beings cannot sustain motivation to sacrifice themselves toward the achievement of what is perceived as impossible. Consequently, preparation for the emergence of radical 59 Phillip Schaff, History of the Christian Church: Volume 1 (New York: Hendrickson Publishers,1985) 60 Alain Badiou, the Word Communism Forever http://www.egs.edu/faculty/alain - badiou/articles/is - the - word - communism - forever - doomed/ 59 subjectivity entails critique and modification of existing accounts of existing possibilities. This is what is aimed at in his own paradoxical way by Slavoj Zizek, with whom Badiou agrees on this poin the What is missing in Badiou is admission and emphasis on the elementary fact that belief in new possibilities is not a sufficient condition for militant dedication to any given possibility. 61 Not only must militants believe in a possibility currently unrealized within the status quo, but they must also believe that possibility to be worthy of fidelity. This minimal element of normativity is a necessary condition for radical militancy. f political practice would benefit, I claim, from careful attention to - As Crocker puts it, A development theory - practice is a more or less integrated totality composed of the following components: (A) ethical and other normative assumptions, (B) scientific and philosophical assumptions, (C) development goals, (D) scientific or empirical understanding, (E) policy options and recommendations, (F) critique, and (G) development ac tivities and institutions. 62 61 Zizek seems to give way on this point when it is pressed against him in discussion by Costas Douzinas. See http://simongros.com/video/recordings/slavoj - zizek/slavoj - zizek - costas - douzinas - thought - age - monsters/ 62 David Crocker, Ethics of Global Development: Agency, Capability, and Deliberative Democracy (Cambridge: Cambridge University Press, 2008), 71. 60 representation of possibility obviously crucial is always at work in conjunction with representations of normative desirability. This is true in several ways. What is in fact possible at any given time is contingent upon individual behavior, motivation, and the existent representations of what ought to be done. Crocker approvingly quotes Onora to are contingent upon certain assumptions about what people will do in the pre-famine period. Famine is said to be inevitable if people do not curb their fertility, alter their consumption patterns, and avoid pollution and consequent ecological 63 But also, equally important, which possibilities are recognized will depend crucially on case that we always first discover what is possible and then select what is desirable. Sometimes we start with our ends, and then 64 Finally, once possibilities are adequately understood, there remains the task of deciding between feasible alternatives. Frequently, moral principles and judgments come into play directly and of these futures, the basic development goals they intend to pursue. One engages in relevant or realistic utopianism by selecting a future from among the available options that is on balance morally best as well as realizable. 63 Onora in World Hunger and Moral Obligation , ed. William Aiken and Hugh La Follette (Engelwood Cliffs, NJ: Prentice-Hall, 1977), 160. 64 Crocker, 85. 61 Badiou, then, misses or neglects this understanding of the way that normativity is co - constitutive with our awareness of possibility and is necessary for choosing between concrete options. But, in part because of this gap in his thinking, he also misses the crucial role of normative pedagogy in the preparation of militancy. Here, we should mention, as a domain of research that supplements the lacunae in Ba oeuvre, a host of work being done on relations between philosophy, art, and pedagogy, democratic - 65 A citizen teacher is a militant to justice dedicated to becoming aware and fostering awareness in others of the severe violence. As Esquith explains, to be complicit with severe violence does not i mply that we are agents of violence. It may simply mean that we enjoy ongoing benefits that derive directly from instances of victimization. 66 The citizen - teacher uses not only reasoned argument, but also various forms of artistic representation poetry, literature, film, and critical reenactment to shift the questions we ask about and therefore our understanding of our responsibility toward others. The citizen - teacher has an ability to initiate reasoned and emotional engagement among themselves and others on the topic 65 Stephen L. Esquith, The Political Responsibilities of Everyday Bystanders (Pennsylvania: Pennsylvania State University Press, 2010) 66 beneficiaries of the deposits and changing landscape left in the wake of this stream of harm and bystanders fill the once - filled jobs, hold the once - held offices, occupy the once - occupied homes, farm the once - farmed land, and even parent the once - their offspring attend the schools, cultivate the land, buy the products, and inherit the property made available to them by earlier displacements, disappearances, and less overt acts of ethnic Ibid, p.16. 62 of responsibility in a way that utilizes identity and emotional resources in the task of interpellating subjects into a narrative of justice. It is no accident that responsibility is the primary category of focus in work. This priority reflects a growing awareness that rights-talk has been given attention without the necessary focus on our responsibilities to guarantee rights. The result, as he and others note, is that, as the guarantees and stipulated protections of rights proliferate across the world, we lack the corresponding political will needed to actualize their existence. 67 The citizen teacher aims at nurturing widespread recognition of complicity with severe violence as a first step in which everyday bystanders become aware of both the existence of horrible deprivation and their own connectedness to those realities. Going a step further, we might say that this recognition of complicity is one instance of a more general feeling of connectedness to a conceptions and theories of justice arise given the individual primordial experience that is not right with the w i.e. formal theories of justice are founded atop a formational, inchoate, and unarticulated sense that someone or something has not been given what is due. 68 A motivated militant subjectivity is grounded in a vague sense of 67 Onora Dark Side of Human International Affairs , 81, 2005, 427-39. 68 Esquith endorses this claim when he asks in the closing pages of the text, these stories and claims about the motivational force of critical reenactment add up to a theory of democratic political education? If we mean a systematic account of otherwise disparate intuitions and observations, then there is certainly no theory here. Perhaps, however, a theory of this sort is not exactly what is needed to prompt everyday bystanders to recognize their shared political responsibilities for severe (p.207) He asks, everyday bystanders support 63 toward questions of what can and should be done and, finally, toward a critical interrogation of the beliefs and suppositions concerning entitlement and desert embedded in the disjointed experience itself. More precisely, responsibility has a conceptual priority over rights simply because the very articulation of rights presupposes a subject who has experienced and become cognizant of the gap between reality and expectation and who has been jarred from dogmatic complacency toward critical investigation of entitlement and possible action. The c oncrete specification of rights as one possible reaction to this primordial gap emerges from and is revised within this process. Normative pedagogy in the first instance is an attempt to activate and become aware of this original experience by connecting i ndividuals in detailed ways with suffering in the world and by revealing the relations between that suffering and our own lives. Militant fidelity is ultimately fidelity to the experience of a disjointed world that necessarily serves as the raw material fo r theoretical conceptions of justice. The successive waves of justice theories are practical attempts to cope with this basic source of normativity; the antagonism between reality and expectation. reparations, reform immigration laws, or increase foreign aid and charitable giving? What I have suggested is that none of these competing issues, as important as they are, will be addressed and resolved until everyday bystanders feel responsible for participating in In a precise sense, then, the role of the citizen teacher should be understood as a complement to systematic theories of justice such as those offered by Rawls. This is because theories of justice suppose that citizens have a sense of justice when in fact, while a sense of justice may in fact be a necessary condition of becoming a political actor, there may still be a good deal of work to do both cognitively and emotionally before our underlying principles and unarticulated presuppositions can become a recognizable sense of justice . The important task of the citizen teacher lies further upstream than does the work of theory and the former often holds as a necessary condition of the latter. 64 Emphasis on the phenomenological priority of responsibility over rights and the to human rights function in the contemporary world as superficial justifications for the imperialist interventions of self - serving elites. Badiou is of course correct to say that human rights discourse is in fact used in this way. From the 2003 invasion of Iraq to the drone purgings in Pakistan and the broader world, human rights discourse is employed by western leaders in defense of military interventions, only to be forgotten when there arise questions of extraordinary rendition and torture, judicial review for suspected terrorists, and weapons sales to unaccountable regimes in Saudi Arabia and elsewhere. As Badiou puts it: What is essentially retained from Kant (or f rom an image of Kant, or, better still representable imperative demands that are to be subjected neither to empirical considerations nor to the examination of situations; that these imperatives apply to cases of offence, of crime, of Evil; that these imperatives must be punished by national and international law; that, as a result, governments are obliged to include them in their legislation, and to accept the full legal range of their implicatio ns; that if they do not, we are justified in forcing their compliance (the right to humanitarian interference, or to legal interference). 69 But even were we to accept this as an accurate description of the actual functioning of human rights discourse today, we should be suspicious of recommendation that we abandon all talk of human rights. While we should agree 69 Alain Badiou, Ethics: An Essay on the Understanding of Evil (New York: Verso, 2001), 8. 65 with him that we too often fail to make a distinction between the justifications of rights, on one hand, and reasoning about their implementation in concrete empirical contexts on the other, he writes as if this problem were not on the radar of contemporary theorists of human rights or as if there has not been an active assessment and proposed solution to this problem. 70 There is most certainly a need to investigate how universal normative prescriptions should be integrated with the social, cultural, and political specificities of un ique situations, and this would most certainly require careful attention by opportunistic leaders presupposes the emergence of greater involvement and diligent effort by a po pulation motivated toward the actualization of certain human powers, not outright abandonment of their normative defense. The role of normative pedagogy is to actualize the radical potential of human rights discourse by constructing a morally motivated pub lic to hold the political judgments of ourselves and our leaders accountable to principles aimed toward protecting human beings and moral persons from their constituent vulnerabilities and toward developing our most important capacities. The problem with h uman rights discourse today is not so much the conceptual incoherence raised by Badiou nearly all of his objections have been 70 See, for example, Martha Nussbaum, Frontiers of Justice: Disability, Nationality, and Species Membership (Cambridge: Harvard University Press, 2006). Especially the following passage: may think that the standards of a given nation are defective, and that we can justify as applicable to that nation a more extensive menu of basic rights and liberties than it now recognizes, thus making justified criticisms of that nation, without thinking that we have the right to intervene in its affairs, either militarily or through economic or political sanctions. recognition of a salient distinction between justification and implementation is typical of the modern human rights movement, which uses persuasion in most cases and urges forcible intervention in a very small number of cases 255 - 6. 66 articulated and addressed ad nausea in literature he leaves unmentioned but the lack of a political will to engage in the ongoing democratic work of instantiating human protections and enabling human powers in particular contexts. Further, and this is the second crucial criticism made by Douzinas, the pol itical projects with which Badiou associates himself perhaps unsurprisingly given the above analysis already necessarily rely on appeals to justice and some kind of specification of rights protections. When Badiou defends the sans - papiers undocumented wor kers in France by mobilizing his Organisation Politique , he simply cannot avoid, as a matter of basic consistency, some appeal to the idea that people are entitled to a society in which certain protections are guaranteed. Specifically, he appeals to the ne ed for protections against police brutality, forms of racism, cultural intolerance, and so on. - a - others ought to bear whatever burdens such protections impose are not on offer to public scrutiny and justification. So, while he implicitly presupposes normative conclusions about political morality and justice, he presents himself as if these conclusions are beyond the domain of rational inquiry. It is, I claim, in the interest of distancing himself from human rights discourse that Badiou leaves his central political presuppositions vague and without reasoned defense. But insofar as he does so, he is comp licit with the general rejection of normativity that, I have argued, helps to sustain the very mechanisms of global capitalism he claims to oppose 67 A Reproach How might Badiou or others interested in avoiding appeals to justice defend themselves against this line of thought? It is certainly possible to doubt my claim that commitment to and advocacy for a particular design of social power commits one to a presupposition concerning what others are owed. One objection points to the apparen t possibility of justifying social arrangements strictly by appeal to any one of an array of the absurd conclusion that it is impossible to recommend a social policy or und ertake an action on grounds of non - justice values such as efficiency, political effectiveness, increased economic growth, patriotism, cronyism, or naked self - interest? But I do not say that justice is inescapable because appeal to other sorts of values as a ground for ground political action is impossible. Rather, I have said that justice is inescapable because it is a value that is necessary though certainly not unique to forming coherent political judgment. Political actors can and do appeal to values oth er than justice when justifying and persuading other people about how to handle social conflict. My claim is that non - justice values are never sufficient grounds for justification of any design of social power. This is because the pursuit of non - justice values always contains the minimal presupposition that it is justified to pursue those values. And the minimal feature of a justified pursuit of values is commitment to the idea that such pursuit will not affect any individual in a way that he/she does not deserve or, more precisely, 68 that the recommended political action will approximate as closely as possible, given the political situation, the treatment of persons in ways they deserve to be treated. Concretely, the free - market advocate can cer tainly champion free - trade policies on grounds that capitalism should be promoted across the globe. But there are a host of normative presuppositions that attach to such recommendations. As Des Gasper has - faire capit assumption concerning which values should be measured is liberal that people should get more of what they want but with markets taken as a satisfactory means of operationalizing 71 He goes on to qu ote an empirical study by in evaluations of development aid, sometimes in opposition to the principles which are the empirical study of these assumptions the demands of logical consistency dictate that some sort of appeal to who should get what is necessary since, in order to recommend a political plan of action, one simultaneously commits to saying that the effects of that plan on human beings are proper and appropriate given the circumstances. because questions for 71 Des Gasper, The Ethics of Development: From Economism to Human Development (Edinburgh: Edinburgh University Press, 2004), 49. 69 values have been omitted or inappropriately affected by those policies, and to claim that the resulting distribution of burdens and benefits is permissible from a political moral standpoint. The needed shift in our public culture is to enable citizens to effectively identify these normative presuppositions and to raise the question of whether they can be defended. Politics as the collective design and exercise of power is a sometimes brutal activity which affects the world and persons within it in profound ways by enacting tough trade-offs between interests and desires. When political actors hide the values that drive their political recommendations, they simultaneously hide the constituency most benefitted by them and thereby shield themselves from the need to justify those values to the others whom they affect. Perhaps now we are in a position to understand more fully what Rawls meant when he wrote: antage, it is typically marked by a conflict as well as by an identity of interests. There is an identity of interests since social cooperation makes possible a better life for all than any would have if each were to live solely by their own efforts. There is a conflict of interests since persons are not indifferent as to how the greater benefits produced by their collaboration are distributed, for in order to pursue their ends they each prefer a larger to a lesser share. These principles are the principles of social justice: they provide way of assigning rights and duties in the basic institutions of society and they define the appropriate distribution of the benefits and burdens of social cooperation. 72 72 John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 4. 70 To denounce as ideological all appeals to justice qua justice or to outsource those decisions to a supposedly neutral mechanism like the market is to conceal the fact that politics in essence is to take a stand on and act toward the conflicts of interest or social antagonisms that pervade society. Justice is the first value of politics because politics entails a performative affirmation of a particular characterization and distribution of burdens and benefits and, therefore, presupposes a certain view of justice. It is my democratic conviction that the principles which underlie this unavoidably performative dimension of political life can and ought to be the object of public discussion, rational assessment, and reciprocal justification, and that they ought not to be hidden or left as implicit presuppositions of private life. Concluding Summary We live in a society deeply skeptical of the usefulness and possibility of rational discussion concerning normative issues, especially questions of justice. On one hand, this skepticism sustains and is sustained by the spread of global capitalism since the collapse of 20th century communism, particularly by the misperception that markets serve as value-neutral mechanisms capable of solving problems of resource distribution without appeals to normativity. On the other hand, there continues among radical leftists a pseudo-Marxist suspicion that appeals to normativity are ideological and can 71 be avoided in favor of a discourse that emphasizes the internal contradictions of capital, scarcity, and the reimagination of political possibility. I have argued that this general rejection of normativity, shared across the political spectr um, is, in fact, an incoherent and socially conservative phenomenon insofar as it deprives citizens of the motivational resources needed to sustain fidelity to social change. Further, I have argued that appeal to an idea of justice and rights - talk is not o nly present in the work of Marx, it is inescapable. First, distributional mechanisms like the market are not neutral and, therefore, cannot be used to sidestep the question of the normative desirability of markets. Second, popular amoral readings of Marx neglect his appeal to democracy and human flourishing as the normative foundations of communist society. Third, appeals to the potential end of scarcity or the instability of capitalism are no substitute for an idea of justice. Rather, deliberate social change logically requires appeal to principles dealing with who is owed what by whom. Fourth, the question of political motivation cannot be disconnected from reflection on normativity. In particular, motivating militants of justice requires not only insti lling the awareness of our complicity with severe violence and awareness of the gap between reality and our spontaneous expectations, but the task of reimagining political possibility presupposes the development of normativity as a necessary and mutually reinforcing condition. Finally, the concrete political action of radicals performatively presupposes some appeal to justice often this is some version of the very rights - talk they explicitly criticize in order to justify the recommended distribution of bur dens and benefits arising from the design of social power. 72 These five arguments suggest that appeals to the idea of justice are both necessary and contain within them a radical potential to initiate and sustain a collective challenge to the status quo in the name of human flourishing and democracy. If the arguments presented so far work, they suggest that the real question is not whether social change requires appeal to justice, but, rather, to which idea of justic e should we appeal? We will approach this question in Chapter 2 via a critique of the work of the great liberal thinker John Rawls. In that chapter, I argue that the fundamental entitlement/duty of justice is to conceive ourselves as entitled to receive an d obligated conceptions of justice. . In that chapter, I argue that the primary entitlement/duty of justice is to see ourselves as entitled to receive and obligated to provide a special type of justification -- a freestanding, political justification -- in support of our adopted conception of justice. Close consideration of Rawlsian political liberalism in the second chapter paves the way for the reflections of Chapter 3 and 4 in which I consider two distinctive shortcomings of Rawlsian theory and introduce in Chapter 5 a distinctive remedy to those shortcomings, though, to be sure, not without substantial revision to and deflation of popular ideas about what philosophica l reflection can tell us about justice. 73 Chapter 2 Political Liberalism and the Burdens of Judgment I argued in the first chapter that political action always presupposes some conception of justice. In this sense, justice is necessarily and inescapably an issue for political actors. I also claimed that the first task of justice pedagogy is to force conceptions of justice to appear to those who hold them and that in this process it becomes possible to experience the gap between a universal conception of justice and our own particular behavior, feelings, and modes of reasoning. This is how our conceptions themselves can become objects of critical investigation. But while the first chapter described this formal process of t he appearance of justice, we have not yet begun investigation into which conception of justice is best or even asked how we might begin to reason about this question. And yet the inescapable question of justice as a vision of the proper way to pursue and allocate the incredibly wide range of valuable goods within a society calls to us for investigation if for no other reason than the predictable social division it engenders. Indeed, from a certain angle, politics is precisely conflict between human beings fighting and often dying to realize alternative distributions of goods. Moreover, modern disagreement about justice is stubbornly deep: We disagree not simply about who owes what to whom, but also about even the 74 sorts of things which should be conceived as goods and how to reason collectively about their identification, weighting, and distribution. Philosophy practiced as an onto-ethical set of discourses on the nature of rationality had held out hope to at least contribute to narrowing political disagreement and conflict. 73 But metaphysical investigation seems not so much to have narrowed the range of political disagreement as to have clarified and perhaps entrenched various points of division. By now the distinctively modern project of showing how reason can autonomously reveal its own rules of operation and thereby ground itself has exploded largely into fragments of specialization and cultural division. 74 Today, social cohesion is promoted less by the shared dictates of a common reason and more by the necessities own "self-imposed mental immaturity", as Kant put it, seems in many eyes to have left contemporary human beings amidst a sea of broken and partial traditions with no clear sense of how human inquiry might use supposedly autonomous reason to ground itself. 75Conducting political philosophy in a situation of immense pluralism, one might argue, is especially difficult since the task of beginning an argument concerning the 73 By 'onto-ethical' I am referring to discourses that attempt to establish ethical imperatives by discerning some aspect of being, e.g. rationality, God, or Nature. 74 Two rather different sources for overview of modernity include J. Habermas, The Philosophical Discourse of Modernity: Twelve Lectures (Cambridge, MA: MIT Press, 1990) and R. Pippin, Modernism as a Philosophical Problem : On the Dissatisfactions of European High Culture (New York: Wiley-Blackwell, 1999). 75 I.Kant, is in Political Writings (Cambridge: Cambridge University Press, 1991) 76 A . Ma cI n t r y e, Who s e J u s t i c e ? Wh i c h R a t i o n a li t y? ( I nd i a n a p o l i s : U n i v e r s i t y o f N o t re D a m e P r e ss , 19 8 9) 75 nature of reason must in some sense presuppose the very account it is intended to support, and so involves itself in contestable circularity. For this reason the conclusions of philosophical inquiry may appear as unacceptably arbitrary and without secure cognitive foundation. If reasoning must to some degree begin from within a particular tradition of reasoning or shared practice, what does this imply for a situation like today in which processes of modernity, including the global movement of capital and labor, have undermined local and national communities so as to seemingly deprive us of shared substantive starting points? The question of the p ossibility of an effective philosophical beginning in the investigation of justice asserts itself more firmly today as we struggle to live in the shadow of disjointed traditions and the various unfulfilled promises of modernity. Indeed, some have suggested that the divisions between traditions of rationality may be so deep so as to pose obstacles, not simply to the social challenge of garnering agreement on justice and the good life, but for even the more modest task of understanding one another. 76 In his Lectures on the History of Political Philosophy , John Rawls articulates in no uncertain terms his apparently modest view that political philosophy must be practiced especially in such conditions social fragmentation in what seems to some as a sorely deflat ed, contextual: Political philosophy has no special access to fundamental truths, or reasonable ideas, about justice and the common good, or to other basic notions. Its merit, to the 76 extent it has any, is that by study and reflection it may elaborate deeper and more instructive conceptions of basic political ideas that help us to clarify our judgments about the institutions and policies of a democratic regime. 77 The idea Rawls has in mind is the ability of political philosophy to reach behind immediate disagreement to ideas implicit in shared practices and to spell out plausible articulations of those areas of deep agreement that may help to reconcile and overcome surface division. This basic strategy of social reconciliation through collective deliberation on shared practices and especially shared democratic practice is at the heart of the political approach to justice exhibited by Rawls. It is this understanding of political philosophy and its deep connection to political liberalism that I find among the most important features of the Rawlsian legacy and the specific aspect of Rawlsian thought that I want to focus on and defend in this chapter. Among the chief threats posed by social fragmentation, irreconcilable rationalities, or the of is the possibility that multicultural democratic societies have become unrealistically Utopian political projects. If it is impossible to promote agreement on at least minimal requirements of practical rationality, especially as they pertain to the value of justice, the hope for a society which settles conflict and disagreement concerning the pursuit and allocation of goods by means of argument and persuasion rather than forms of physical and economic violence would be illusory. The fear is that in the absence of publicly shareable forms of reasoning, we would be left 77 J.Rawls, Lectures on the History of Political Philosophy, p.1 77 merely with forms of rationality constituted by the respective cultural domains in which they arise and with nothing but power and contingent force as a standard of adjudicating conflict between these traditions . It would no longer make sense to hope that politics might become something other than a domain in which identities conflict in the attempt to overpower one another with no shared framework for reasoning and judgment. The possibility of avoiding incessant war and achieving a modicum of social stability would in such a world hinge on the creation of a modus vivendi perhaps at best with a procedure for aggregating preferences in which the strongest parties enforce their own political policies without the consent of or deliberation with others. This process would obliterate even at the level of ideals the possibility of free and equal deliberative democratic interaction between citizens. The hope for a democratic society today depends in the first instance on whether it is possible to conceive a realistic, just, and stable relation between free and equal citizens who exercise their moral powers in collective deliberation even should it turn out that the modern project of establishing the autonomous universality of reason and judgment has failed. The central place given to this question in the work of John Rawls is precisely why he remains indispensable reading and why political liberal approaches to justice should be studied in our increasingly postmodern society. 78 I am aware that it is unpopular among some quarters to defend the Rawlsian approach even in the qualified 78 I use in a general sense to refer to an historical epoch in which we have become suspicious of the Enlightenment account of universal reason and, as Lyotard put it, distrustful of 78 manner in which I will do so. Indeed, in light of the sheer volume of critical commentary offered on his theory since 1971, it is entirely possible to approach Rawls negatively by means of a typology of rejection. This approach is useful because by noting each general domain of rejection we familiarize ourselves in broad brushstrokes with his overall theoretical apparatus and enable a clearer focus on the political character of the Rawlsian project as opposed to other features. It is important to be and only this aspect that I will be defending in this chapter. The most prominent critics offer the following objections individually or in combination: 1)Challenge to the distributive content of the principles themselves . This group includes those who reject the lexical priority of liberty (Amartya Sen 79), argue for formal rath er than fair equality of opportunity (Nozick 80), or those who reject the difference principle in favor of a distinct distributive principle (Nozick or Philip Pettit 81). This list would also include communitarians like Walzer 82 who argue that each good is governed by distinct distributive principles according to the ontological type of good in question. In general, what distinguishes these challenges rather than emphasis on methodology, scope of the principles, or even what good is being distributed is the way they all question the concrete distributive requirements of the justice principles themselves. 79 A.Sen, The Idea of Justice (Cambridge: Cambridge University Press, 2009), see Chapter 2.80 R.Nozick, Anarchy, State, Utopia (New York: Basic Books, 1974)81 P.Pettit, Just Freedom: A Moral Compass for a Complex World (New York: W.W. Norton & Company, 2014)82 M.Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1984)79 2) Challenge to the scope of the principles of justice . Representatives from this group include a variety of challenges to Rawls's argument for the primacy of the basic structure, including Thomas Pogge's early work 83 which champions global extension of the difference principle as well as others like Susan Moller Okin 84 or G.A. Cohen 85 who argue for applications of justice principles in domains other than Rawlsian theory allows (such as in the family or directly to individual behavior). This category also includes writers who claim that justice principles pertain to some domain more restricted than the basic structure such as linguistic community or nation. The common thread in these arguments is the way they object not necessarily to the content of the principles themselves but to t he scope of jurisdiction they are supposed to cover. 3) Challenge to the doctrine of social primary goods as an inappropriate conception of the currency or distribuendum of justice. This includes Nozick's emphasis on individual rights as the good distributed by justice principles, Hare's focus on utility 86 , Sen's focus on capabilities, and Walzer's emphasis on basic goods. The dispute here concerns how to understand the goods whose distribution is to be specified by a theory of justice. 4) Challenge to the social contract approach . Included here are those who reject the modelling device of the Original Position (Nussbaum 87 , Sen, Pettit), take issue with the 83 T. Pogge, Realizing Rawls (Cornell: Cornell University Press, 1989) 84 S.M. Okin, Justice, Gender, and the Family (New York: Basic Books, 1991) 85 G.A. Cohen, Rescuing Justice and Equality (Cambridge: Harvard University Press, 2008) 86 R.M. Hare, Moral Thinking: Its Levels, Methods, and Point (Oxford: Oxford University Press,1982) 80 abstractions and idealizations of human beings presupposed by political constructivism (Sandel 88, MacIntyre, Nussbaum, Charles Mills 89, Lisa Schwartzmann 90), those who take issue with the conservative nature of reflective equilibrium as a mode of justification, or those who question the normative force of overlapping consensus. 5)Challenge to the 'political, not metaphysical' approach to justice . Included here are those who reject the philosophical coherence of bracketing metaphysical presuppositions (Habermas 91) and those who claim that any requirement of religious and metaphysical bracketing by a conception of public reason disproportionately marginalizes specific identities (Romand Coles 92, Iris Marion Young 93). 6)Challenge to the concept of the reasonable. This general domain is closely related to the challenges in (5). Objections to the concept of the reasonable include those who claim the concept of the reasonable is insufficiently justified within political liberalism (Habermas, Todd Hedrick 94), those who claim the concept of the reasonable is 87 M.Nussbaum, Frontiers of Justice: Disability, Nationality, and Species Membership (Cambridge: Belknap Press atHarvard University, 2007) 88 M.Sandel, Liberalism and Its Limits (New York: New York University Press, 1984) 89 C.Mills, The Racial Contract (Cornell: Cornell University Press, 1999)90 L.Schwartzman, Challenging Liberalism: Feminism as Political Critique (Pennsylvania: Penn State University Press, 2007) 91 J.Habermas, Inclusion of the Other: Studies in Political Theory (Cambridge, MA: MIT Press, 2000) 92 R.Coles, Gated Politics: Reflections on the Possibility of Democracy (Minneapolis: University of Minnesota Press, 2005) 93 I.M. Young, Inclusion and Democracy (Oxford: Oxford University Press, 2002)94 T.Hedrick, Rawls and Habermas: Reason, Pluralism, and the Claims of Political Philosophy (California: Stanford University Press, 2010) 81 insufficiently attentive to religious and metaphysical identities (Iris Marion Young, Romand Coles) but also thinkers critical toward the institutional effects of the 'discourse of toleration' (Wendy Brown 95). Though all these domains of critique are crucial, it is not implausible to view as controlling issues for Rawls the set of concerns raised in (5) and (6), especially the closely related ideas that justification for any distribution of goods must be political in nature and that the primary virtue of just citizens is reasonableness . These claims are a t the heart of the political approach to the possibility of just democratic cooperation within a multicultural society and, therefore, shape and inform all other features of theory. My claim in this chapter is that we should defend the Rawlsian vi ew that citizens should strive to reconcile their conceptions of justice with the specifically political requirements of political liberalism, if we are to respect deliberative democratic values of freedom and equality within a stable institutional order capable of reproducing itself over time. At bottom, to say that justice must be political means that the first demand of justice is to create a society in which each citizen is seen as entitled to receive and therefore obligated to provide for others a distinctly political justification for all proposals concerning the pursuit and allocation of basic goods. 96 Citizens who aspire to such a society and strive to provide such justifications for their own behavior 95 W.Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire (Princeton: Princeton University Press, 2008) 96 I see my view as compatible with the view advanced in R. Forst, The Right to Justification: Elements of a Constructivist Theory of Justice (New York: Columbia University Press, 2012) 82 concerning basic justice are seen to be reasonable. The burden here in this chapter is to make clear and plausible these interrelated ideas of democracy, political justification, and reasonableness. Though this chapter is general in nature, it sets the conceptual background and tenor for the more detailed examinations of political liberalism that follow in chapters three, four, and five. Indeed, it is in those later chapters and in the light of the present inquiry that the topics raised by the domains of challenges above in (1), (2), (3), and (4) some of which I believe correct in their criticism of Rawls are given more substantive treatment. In the present chapter, section one outlines the political liberal rejection of teleological accounts of justice. I explain how this comes about through an embrace of the burdens of judgment and a rejection of non-pluralist, univocal accounts of reason and value. I show more fully what I have already suggested, namely, how the persistent conflict grounded in disagreement about reason and value poses a challenge to deliberative quality and functional stability of democratic society. This conflict underlines three interconnected reasons why respect for democratic freedom and equality in multicultural societies requires a political conception of public reason : the burdens of judgment, the fact of oppression, and the existence of reasonable pluralism. This section offers prima facie reasons to believe citizens ought to be guided by conceptions of justice that are political in nature. Section two explains Rawlsian political constructivism as a particular conception of public reasoning responding to the above three facts. Rawlsian political liberalism 83 offers a vision of justice and social unity by working in a precise way from the democratic values of freedom, equality, reciprocity, and stability toward specific principles of justice. I show how Rawls tries to work these fundamental ideas into a concept ion of justice whose content makes room for the possibility of an overlapping consensus. Political constructivism in general and Rawlsian constructivism in particular are seen as ways of satisfying the political obligation of reasonableness. I am not inter ested in defending either the specific results of Rawlsian constructivism or particular method. I use this section to show how the task of constructing what Rawls proceed. Section three defends the central concept of the reasonable as a moral category requiring each citizen to understand and comply with certain implications of the burdens of judgment in their role as citizens in a stable democratic society. I show how the concept of the reasonable establish es the bounds of toleration implicitly presupposed in the first two sections. Political justice claims those views of the good advanced by reasonable citizens holding reasonable comprehensive doctrines are to be fully included in the construction of just terms of social cooperation, while unreasonable citizens are to be either brought into the realm of reasonableness or else ultimately marginalized. 97 I show how the sort of toleration required by political justice 97 As Rawls bluntly puts it concerning those citizens who do not meet the minimal demands of reasonableness, there are doctrines that reject one or more democratic freedoms is itself a permanent fact of life, or seems so. This gives us the practical task of containing them like war and disease so that they do not overturn political justice. Political Liberalism , p.64, footnote 19 84 in current affairs. Finally, I reply to the critique of Rawls offered by Todd Hedrick who has recently claimed that political approaches to justice cannot offer a coherent explanation of their justificatory force. 98 In these ways, I defend political liberalism as a powerful approach to conceiving democratic justice and argue that a minimal condition of just democratic societies is the existence of a reasonable citizenry. The practical hope, then, is that philosophical reflection on the close connection between deliberative democracy and reasonablen ess might make some contribution to the mobilization of efforts needed to create social practices which help to produce and reinforce the passion for reasonable political deliberation. Plural Valuation, Social Instability, and the Solution of Political Justice On 4 February, 1968, in his final sermon before being murdered two months later, Martin King Jr. argued that human nature contains a fundamental drive or psychological tendency he called the 'Drum Major Instinct." 99 The instinct in question is an egoistic desire to stand out, to be recognized, praised as worthy, or seen as a great person. He appealed to familiar aspects of human life as illustrations self - 98 Todd Hedrick, Rawls and Habermas: Reason, Pluralism, and the Claims of Political Philosophy (California: Stanford University Press, 2010). 99 See http://mlk - kpp01.stanford.edu/index.php/encyclopedia/documentsentry/doc_the_drum_major_instinct/ 85 aggrandizing political behavior, the regularity of boasting and lying to others about our personal accomplishments, envious attempts to sabotage the successes of our enemies and even friends, and the self-centered demands for attention we display as newborn babies. Though innately prized as among the most valued goods, King argued, the desire for recognition has the potential to create social instability by taking various anti- social forms of 'snobbish exclusivism' (e.g. the joining of exclusive clubs, fraternities, or, today, 'gated communities'), racism (being recognized through membership in a supposedly superior race), or nationalistic military competition in which we attempt to outdo others in the production and deployment of weapons. If the drum major instinct manifests itself in these ways, King claimed, it leads to social division, war, and the ultimate decline of society. A stable society one at peace with itself and whose organization does not generate irresolvable crises therefore, must deal with the potentially destructive psychological tendencies of its members in their struggle for social recognition. King doubted the possibility of entirely eliminating the drum major instinct. But he did think the drive could be tamed by adequately harnessing its energy by redefining the terms in which recognition is sought. Instead of conceiving that which is worth pursuing in life as the materialistic acquisition of consumer goods, as the false pride produced by boasting and lying, as the fragile superiority provided by racism, or the military power of one's nation, King saw the hope for social stability in widespread acceptance of a universally sharable definition of greatness one King believed was 86 satisfied by a life of service to others . King holds out the teleological hope that a society united around this vision of what is of most value in a life could achieve the unity and justice required to keep itself stable and to avoid the disintegration familiar to many powerful civilizations from Rome onward. He concludes the sermon with the claim that it is through this conception of the good as service that he wants his own life to be understood and remembered. The sermon highlights an apparent but sometimes neglected truism about an essential feature of stable societies. Social stability is deeply connected with how and what members of society value. King's point is that peace is in part so difficult to achieve and maintain precisely because it exists only on condition of a certain unity in valuation i.e. on condition of agreement about how to settle conflicts over what and how to value aswell as disagreements on how to pursue and allocate those values. Further, if Sam Scheffler is correct, the burden of promoting unity of valuation is especially difficult because valuation itself is more complex than merely desiring something or believing that something has value. It consists, rather, of at least four distinct dimensions: (1)A belief that X is good or valuable or worthy. (2)A susceptibility to experience a range of context-dependent emotions regarding X.(3)A disposition to experience these emotions as merited or appropriate. (4)A disposition to treat certain kinds of X-related considerations as reasons for action relevant deliberative contexts. 100 100 Scheffler, Equality and Tradition (Oxford: Oxford University Press, 2010), p.29 87 Social stability depends on coordination across citizens of their various intimately connected constellations of belief, emotional tendency, judgment, and modes of reasoning. The maintenance and reproduction of society over time requires the collective coordination of these incredibly complex and variable features of individual human life. 101A total failure to integrate and to some extent homogenize patterns of valuation leads to social conflict and, ultimately, holds out the possibility of catastrophic destabilization. As Socrates forced Thrasymachus to admit, even a collective of thieves requires some degree of coordinated valuation in order to maintain group cohesion. For this reason, stable democratic society depends on at least a minimal coordination of valuation specified by rules that are shared and known to be shared. These rules or terms of cooperation are specified in the first instance by the content of a shared conception of justice an account of how to approach the distribution of goods. 101 The importance of this point can be seen vis-a-vis the way some responded to those in Ferguson, MO who protested the police killing of unarmed black men Michael Brown and Eric Garner under the slogan of 'Black Lives Matter'. A typical objection to these activities was to insist on 'All Lives Matter' as a sort of moral counterpoint. The problem with this response is of course not its falsity. Of course, all lives [ought to] matter. But the true point of the slogan Black Lives Matter is that, as a descriptive point about patterns of valuation, black lives are not and have not been valued as if they matter. Simply saying or even believing that all lives matter implicitly including as a mere logical point that black lives matter as well neglects specific ways past and present that the value of black lives has been explicitly denied. It supposes that simply affirming or believing in the value of black people is synonymous with valuing black lives. But valuing a life not only means belief in the value of those lives and an corresponding desire to see that the value of those lives are adequately respected, but also a certain emotional awareness, reasoning, and behavior with regard to the plight of black lives. In this light, the question of what it means to genuinely value any life becomes much more complex and demanding. To value something is to achieve a complex ordering of beliefs, feelings, judgments, and forms of reasoning and behavior with respect to an object of value. When seen in this light, the slogan becomes a reminder for the shortcomings of our present patterns of valuation. 88 Perhaps we can even say that a shareable conception of justice is in the first instance nothing but the most defensible terms of cooperation whose content mandates between citizens a certain depth of coordination concerning beliefs, feelings, judgments, forms of reasoning, and behavior when considering matters of justice. Further, the most defensible terms of cooperation will produce stability in the sense that these terms are such that they c an renew whatever citizen commitment is necessary for their own maintenance and reproduction. In this light, we see King's point is that a society whose dominant modes of valuation are grounded in a petty conception of goodness one that is materialistic, racist, nationalistic, militarily hawkish, and ultimately unconcerned with the virtue of justice is likely to go the way of the Roman Empire. 102 Nonetheless, King's sermon remains precisely the sort of teleological solution that will ultimately be set asid e by a political approach to justice and social stability. 103 The first and most crucial point is that King proposes a degree of unanimity of valuation among citizens that is highly implausible in a society which treats citizens as free and equal. His visi on of a harmonious society grounded in a Christian theological vision of service to others is simply impossible and outright undesirable today as an account of the sort of coordinated valuation required by a stable multicultural 102 Quoting King from The Drum Major Instinct Fall of the Roman Empire. And when I come and look at America, I say to myself, the parallels are frightening. And we have perverted the drum major 103 I use the term to refer to the sort of conception of justice which offers a single substantive account of the good for all. This is the conception of teleological which Rawls rejects at the beginning of Theory in favor of his deontological view. 89 democracy. A shareable conception of justice cannot depend on religious justification if for no other reason than that many citizens are not members of the same or even any religious traditions and as such have no religious basis to affirm such a conception of justice . If religion would serve as a justificatory basis for a shared conception of justice, it would need to be plausible to say that citizens could be brought to share the same or relevantly similar theological views. But this is highly unlikely. Though there are certain (relatively) invariant features of cognitive and emotional development that tend to produce some general and discernible patterns in the way human beings grow and come to conceive the world, numerous differences across human lives make it unlikely that we could ever achieve even if it were desirable a total or even approximate identity in the ways we value. As Martha Nussbaum has argued, differences in physical conditions, religious beliefs, social practices, language, and social norms produce different patterns of emotional response and, therefore, different ways of valuing. 104 King's thinking on stability and justice founders insofar as he assumes social conflict can be addressed by promoting unity of valuation grounded in a single theological or a metaphysical narrative. Such a proposal would recommend an unrealistic cultural, social, economic, and even material homogeneity. Indeed, the psychologist Jonathan Haidt has recently argued that there is an evolutionary and social psychological basis for our persistent moral, religious, and 104 M.Nussbaum, Upheavals of Thought: The Intelligence of Emotions (Cambridge: Cambridge University Press, 2001), pps.151- 173. 90 metaphysical disagreements. His research suggests that, not only do humans possess an innate urge for social recognition from others as King suggested, but that the human on the basis of narratives about the world. This psychological tendency has the upside of making it possible for human beings to develop virtues of collective cooperation on the basis of shared narratives e.g. self- but also the downside of generating conflict by hardwiring in us the tendency to dismiss without serious contemplation competing narratives as outrageous, stupid, irrational, or immoral. The very same righteous mind which operates as an evolutionary condition for group cooperation also itself contains the psychological seeds of group that happens to people on the other side. We all get sucked into tribal moral communities. We circle around sacred values and then share post hoc arguments about why we are so right and they are so wrong. We think the other side is blind to truth, reason, science, and common sense, but in fact everyone goes blind when talking about their sacred 105 Nonetheless, H aidt thinks the tendency toward moral and metaphysical tribalism can be mitigated or exacerbated depending on social and cultural conditions. He argues that since the 1990s the United States has come to be characterized by an 105 J.Haidt, The Righteous Mind: Why Good People Are Divided By Politics and Religion (New York: Vintage, 2013), p.364 91 increasingly Manichean vision of politics and religion in which there is little room for toleration or compromise. This has led to congressional gridlock and a general failure of politicians and citizens to pursue bipartisan solutions. What are called for in his view are policies which seek to alter the material conditions of society so that moral tribalism becomes harder to maintain. Haidt, for example, makes much out of the tendency of congressional representatives since 1995 to leave their spouses and children in their home districts while they themselves perform their political roles in Washington. The upshot has been that cross - party friendships between spouses have dwindled. And yet it is just such friendships, he argues, which block human tendencies toward Manicheism and narrowly partisan politics. Haidt supports structural changes which attempt to alter these and other conditions including the running of elections, the drawing of congressional districts, and revamping of the ways campaign finance is generated. imprecision between descriptive claims about human psychology and normative claims about morality. Though this is more than a small problem for someone who claims to be a follower of Hume, it is possible to put the issue aside for now since it does not concern the central issues of political j ustice. As it turns out, despite some pretense, Haidt in the end is not really a disciple of Hume insofar as what Hume said was not simply that emotions and feelings were the drivers of morality while reason is merely their slavish 92 devotee, but that things ought to be that way. 106 Haidt does not embrace this latter claim. In fact, the practical message of his research is that we should strive to create situations in which human beings think about moral reasoning in a broader and less insular manner. We should not be blindly devoted to our own moral tribes but strive to cultivate sensitivity to the reasonably plural bases of moral evaluation. Only in this to recapitulate a phrase from the title of chapter. Haidt is right that breaking out of moral tribalism by coming to recognize and resist our confirmation biases and tendencies toward demonizing those who disagree with us is a crucial part of building a genuinely stable democratic society. But the philosophical point implicit in his psychological work is that doing so requires that we see human reason in such a way so as to make room for the possibility of respecting plural patterns of valuation. What is needed is a way of seeing diverse modes of valuation not merely our own conclusions as being reasonable or cognitively legitimate and therefore worthy of respect, not mere reluctant toleration. Toleration must be provided with certain grounds, limits, and a clear plan of action. It is the development of this more sophisticated understanding of the properly democratic attitudes toward valuation, difference, and stability which marks the transition from Rawls's 1971 A Theory of Justice (henceforth, Theory) to his 1993 Political 106 Recall the famous Humean quote known by even those outside philosophy departments: is and ought to be the slave of the 93 Liberalism . It is well known that the weak link in Theory as Rawls saw it was the congruence argument a line of reasoning which purports to show why each citizen has reason to pursue justice as a 'supremely rational good'. The problem with the argument as it appears there is that Rawls supposes that justifying his conception of just and stable terms of cooperation can be done on the basis of a metaphysical conception of words, Rawls tried to show "that the sense of justice is the same as the desire to realize our nature as free and rational beings and thereby become morally autonomous." 107 But this metaphysical conception of the person as one whose essential nature is characterized by the prospect of autonomy is highly contested and ultimately inefficient from the perspective of garnering political consensus. 108 For example, a liberal Thomist might support the two principles of justice on grounds that those principles realize not the inherently autonomous nature of human beings but the pious desire to act in accord with divine will or God's natural laws. A postmodern liberal like Richard Rorty might support the principles on grounds that they promote a stable way of maximizing the satisfactions of liberal society in the long run. But in supposing that reasonable humans will converge on a single Kantian metaphysical account as the justificatory basis for the 107Samuel Freeman, John Rawls An in The Cambridge Companion to John Rawls (Cambridge: Cambridge University Press, 2003) 108 In Liberalism and Its Limits , Sandel argues that Rawls has presupposed a specific and false metaphysical picture of the self as something unencumbered; something able to identify with any community at will. 94 Rawlsian conception of justice, Theory does not provide a genuinely shareable justification for its central conclusions. What marks the transition to Political Liberalism a transition fully in line with -parochial spirit is a greater emphasis on the moral demand for reasonableness; on the need to cultivate a desire among citizens to live by a shareable conception of justice. This desire is, according to Rawls, conditioned in the first instance by the fact that, due to the ambiguity of human judgment, no conception of democratic justice shareable by all members of a multicultural society can justify itself by appeal to deep metaphysical claims. Since even fully reasonable and rational members of society simply cannot be expected to share the complete gamut of opinions on deep metaphysical topics, the justification for a shareable conception of justice must be of a special kind. 109 Reasonable citizens frame their understanding of disagreement with the right sort of explanation one capable of promoting respect across disagreement in line with the freedom and equality of democratic citizens. We are to understand that the mere fact of disagreement on metaphysical and religious issues does not by itself indicate the existence of an irrationality in one or another party since even among people who can engage in proper inferences, weigh evidence effectively, and fit together competing considerations into a coherent narrative, we should expect 109 Concepts of rationality and reasonableness are central to the Rawlsian project. Rationality concerns what might be called instrumental reason, or the sort of means-ends reasoning that allows us to pursue what we have reason to value. Reasonableness on the other hand is conceived by Rawls as a distinct conception at its root a desire to live with fellow citizens according to terms they can accept given the burdens of judgment which acts amoral notion to constrain rationality. In a well-ordered society, reasonableness is supposed to act as a limiting constraint on the rational pursuit of what citizens have reason to value. 95 disagreement. This disagreement arises not because of some cognitive or emotional deficiency, but because of the intricate subtleties and difficulties of the process of reasoning and judgment itself. Rawls enumerates a list to expl ain the expected divergence of judgment between reasonable people: evidence is sometimes conflicting, the various recognized considerations relevant to any judgment must be weighted, all concepts are vague and subject to hard cases, and we are sometimes fo rced to choose between cherished normative values. 110 The benefit of seeing these fissures or antinomies in the exercise of reason is that it explains how disagreement can emerge even among reasonable people. This account of the burdens of judgment explains conflicts between individuals about how we ought to value the world without establishing a necessary hierarchy of error between citizens and thereby avoids the hasty dismissal and exclusion of those who hat there are a host of metaphysical issues for which widely acceptable answers are unnecessary resources for establishing a just and stable democratic society. Though a particular metaphysical justification of justice may be required for this or that citi zen, it makes no difference for the achievement of justice if a citizen commits himself to a shareable conception of justice because he has the comprehensive doctrine of a Thomist, a Shiite Muslim, a Kantian, a Rortian, or a Habermasian. What matters for t he possibility of stable and just democracy is our reasonable desire to live in a society governed by a shareable conception of justice, that 110 Political Liberalism, 56 - 7 96 we be willing to abide by the dictates of such a conception, and recognize that the concept of shareability must be informed by recognition of the burdens of judgment laid out above. In this precise sense, the transition from Theory to Political Liberalism is quite simply a repetition of what can be thought of as a Kantian gesture of denying the exhaustive power of reason in order to make room for reasonable pluralism and, therefore, multicultural stability. A just society is composed of citizens who expect divergence between human beings even under the best conditions concerning judgments about what to value and the beliefs from which we judge those values. The citizens of just societies understand that the free use of reason produces metaphysical, religious, and normative disagreement and that respecting other citizens as free and equal means respecting their different beliefs in these domains. In a just society citizens know that attempts to obliterate heterodoxy of judgment would require oppressive state measures incompatible with the status of citizens as free and equal. 111 The claim that just and stable deliberative democratic societies must build a culture of reasonable citizens who understand the burdens of judgment has radical implications for how just societies must conceive of the objectivity of justice principles. Since we no longer assume that human reason leads us to share a metaphysical doctrine of moral objectivity, democratic virtue requires learning to interact without one for 111 This is what Rawls means by 'the fact of oppression'. 97 purposes of deliberating with fellow citizens about matters of basic justice. The foremost radical contribution of Rawlsian theory to political philosophy is to elevate the primacy of democratic practice, including the conception of citizens as free and equal and therefore the demand for stability grounded in a shareable conception of justice above the demands of any metaphysical account of rationality, the good, or moral objectivity. A minimal feature of just and stable democratic societies is that they be not institutions. 112 Correspondingly, just citizens view their primary responsibility as acting in the social world according to a conception of justice which can be grounded in a political justification. Citizens do not begin with an account of moral objectivity and then ask how this conception informs our theory of justice. Rather, we ask what our theory of justice must look like given the commitment to democratic theory-practice. Rawls wants us to look at certain philosophical topics like realist notions of moral objectivity as inessential and even potentially corrosive at least insofar as we demand that others share our metaphysical reasons for motivations to democratic political cohesion. Instead, Rawlsians want us to see the objectivity of value statements pertaining to politics in a new way: Given the shared commitment to democratic society as the 112 For two thinkers who defend this reading of Rawls see Richard Priority Democracy Over Philosophy" in Objectivity, Relativism, and Truth: Philosophical Papers Volume 2 (Cambridge: Cambridge University Press, 1990) and B. Dreben, on Political in The Cambridge Companion to Rawls (Cambridge: Cambridge University Press, 2003), pps.316-346. 98 horizon of our political life and our prime social aspiration, how should we conceive moral and political objectivity, at least for purposes of coordinating in just and stable ways our different modes of valuation. Religious and metaphysical doctrine along with its deeply divisive disputes is to take a backseat to the practical goal of constructi ng a stable and just democratic society. Now we are in position to understand the pragmatic democratic spirit of the first of the two fundamental questions posed by Rawls at the start of Political Liberalism: "What is the most appropriate conception of justice for specifying the fair terms of cooperation between citizens regarded as free and equal, and as fully cooperating members of society over a complete life, from one generation to the next?" 113 His method for preparing an answer to this question is that only societies whose members are reasonable, who see the need for a political conception of justice in order to establish a shared public framework for collective reasoning about matters of justice, can have a realistic hope of establishing stable and just terms of democratic cooperation. Such citizens do not begin with a claim about the nature of moral objectivity which they then impose upon other citizens but instead allow their conception of justice to be fully saturated by their democratic aspirations: "[T]he first essential is that a conception of objectivity must establish a public framework of thought sufficient for the concept of judgment to apply and for conclusions to be reached on the basis of reasons and 113 Political Liberalism , p.3 99 evidence after discussion and due reflection." 114 The political solution to the conflict between valuational difference and social stability now opposed in form and content to either the theological solution of Martin King or to the Kantian solution offered by the congruence argument of Theory is to bracket any doctrine-specific religious or metaphysical presuppositions, allowing them to be the private source of affirmation for the principles of justice so long as they meet basic requirements of reasonableness. If we can agree that both concerns for stability and equal treatment under conditions of reasonable pluralism provides at least prima facie justification for approaching justice in political fashion, it remains in the next section to explain how such a freestanding political justification is possible. In the final sections, I address issues and objections concerning the formation of a political conception of justice, how such a conception can be conceived as normatively binding, and how such a conception may regulate disagreement about justice issues. Conceptions of Political Justice and the Justification of Overlapping Consensus It should be apparent, then, that while social stability is a fundamental concern in the work of Rawls, the foremost attempt of political justice is to show how it is possible to have a stable society that makes possible equal respect for the freedom of each citizen 114 Political Liberalism , 110, 119. 100 to deploy reason according to her own lights. In short, Rawls is interested in demonstrating the possibility of a well-ordered, multicultural democratic society, regulated by a public conception of justice. A political conception of justice proposes to make possible both the flourishing of diverse comprehensive worldviews and a shared basis on which to reason together about matters of justice. The solution is to construct a conception of justice which is shareable in virtue of its indifference to the religious and metaphysical issues we may take up when addressing matters outside the domain of basic justice. This indifference of the political conception creates compatibility with a plurality of modes of valuation that may exist so that very different citizens are freely able to endorse the same conception of justice on the basis of their affirmed religious and metaphysical bases. The political solution to the possibility of stable democratic justice rests on the distinction between a comprehensive worldview, or collection of beliefs which pertain to the complete range of topics confronted by us during our existence, and a political conception which refers only to principles designed to address the limited range of questions posed by matters of basic justice. A political conception of justice is said to be of diverse comprehensive views in virtue of its capability of being inserted into any ement prevent us from assuming that the free and equal deployment of reason will produce convergence at the level of our comprehensive worldviews, we may nonetheless hold out hope that 101 convergence is possible, in part for reasons endorsed only from the perspective of the private use of reason, upon a shared political conception of justice supposed to regulate and guide our political activity. This convergence on a political conception of justice by diverse comprehensive worldviews is what Rawls calls an overlapping consensus. A political conception of justice which serves as the object of overlapping consensus is considered by Rawls to be a justified conception of justice in virtue of three modes of justification. First, a conception of justice must be examined to determine that it in fact makes possible an ordering of values which answers the range of questions which we would expect to be answered by a conception of justice. Rawls calls this type of minimalist justification pro tanto. Second, each citizen must establish that the political conception can be incorporated into his own comprehensive worldview in a way which promotes reflective equilibrium the harmonious balance between abstract principles and concrete judgments more fully than all competing conceptions of justice. Reflective equilibrium insures the principles of justice specified by the political conception can be supported by and do not unacceptably conflict with the domain of privately held basic values specified in a given comprehensive doctrine. This full justification is conducted by each citizen to make sure that the political conception can indeed fit as a module into their own worldview. Finally, public justification is achieved when the citizenry as a whole has been able to incorporate the political conception into each of our own comprehensive doctrines. Taken as a whole, pro tanto, 102 full, and public justification establish overlapping consensus and are taken by Rawls to be sufficient for the justification of a political conception of justice. We may now ask what features of a political conception allow it to become the object of overlapping consensus? Rawls has named three: First, we know that a political conception of justice must be presented as freestanding, or without substantial appeal to any religious or metaphysical doctrine. This is the primary feature of a political conception which allows it to become the object of overlapping consensus in a multicultural society. It is precisely this lack of metaphysical and religious substance which enables the conception to be filled in with justification according to each diverse and free deployment of reason, thereby respecting their status as free and equal. This freestanding feature of political conceptions, however, raises the question: From where is one to gain the guiding ideas and intuitions for constructing the political conception of justice if not from the respective comprehensive doctrines on offer in society? The answer is that in a political conception of justice the guiding ideas are to be taken from the ideas implicit within shared democratic culture. Every democratic society has a tradition of thought embodied in texts and the operation of institutions philosophically worked into a political conception. The hope here again, we notice Rawls always at work to create a plausible basis for hope is that these implicit ideas are sufficiently substantive and share enough support by 103 democratic citizens so as to serve as the basis for the construction of a freestanding conception. It is from democratic tradition that we gain the ideas assumed as central in the first section, namely that all citizens in a democratic society are to be treated as free and equal persons and that a well-ordered society possesses a shared framework of justice to promote stable collective reasoning concerning its own fundamental features. vague but shared ideas and thereby to establish a philosophical path toward more controversial conclusions embodied by specific principles of justice. Finally, a political conception of justice becomes suitable for overlapping consensus by limiting the range of issues to which it applies. In particular, Rawls claims a political conception of justice should apply only to the basic structure of society, or the major socio-economic institutions of a democracy. By limiting the jurisdiction of the principles of justice, a political conception thereby reduces the range of issues upon which citizens in a multicultural society must find agreement and, in this way, is supposed to make agreement possible. In light of these three limits agnosticism concerning religious and metaphysical topics, the deployment of initial ideas implicit within shared democratic tradition, and restriction of its recommendations to the design of the basic structure a political conception of justice attempts to improve its chances of fulfilling the three required modes of justification and of becoming the object of overlapping consensus. 104 Justice- as-Fairness should be understood as one particular attempt, in a potential family of attempts, to construct a conception of justice according to the reasonable restrictions of the political. Recall, Rawls develops the original position according to the logic of social contract theory as a choice situation which purports to model the ideas of freedom and equality implicit within democratic culture. He argues that rational agents suitably constrained by basic democratic ideas (freedom, equality, reasonableness, and rationality modelled as epistemic limitations on identity and motivation) would choose two principles of justice to guide the design of the basic structure of democratic society: 1)Protection of the largest scheme of liberties compatible with equality for all. (2) a. Equal opportunity and b. the Difference Principle. I am not in this chapter interested in pointing out the limitations of justice- as-fairness , since it is merely one political conception offered by the more general political approach to justice I wish to defend. 115 Among the most insightful and hard-hitting criticisms of the political approach Rawls and Habermas: Reason, Pluralism, and the Claims of Political Philosophy , which argues that political approaches to justice do not offer a coherent approach to justifying the most appropriate terms of cooperation for just and stable democratic societies. In particular, he levels two related charges against the very idea of a freestanding political conception of justice, namely, that (1) the demand to be freestanding effectively prohibits the utilization of intersubjective 115 I will defend in chapter 3 the political attribution of primacy to institutional structures, though in Chapter 5 I will reject freestanding specification of social primary goods as a basis for interpersonal comparison. 105 learning processes in the formation of conceptions of justice (thereby making the establishment of overlapping consensus unrealistic) and (2) even were such a consensus possible, freestanding political philosophy is ultimately unable to offer a universally shareable account that would explain why its results are normatively binding. Hedrick articulates these weaknesses in his opening chapters and then spends considerable time arguing that Habermasian communicative theory offers a procedural account of justice which overcomes these weaknesses. The final section of this chapter outlines forceful line critique and then offers an account of how political liberals might respond. My central claim is that political liberalism can in fact capture the intersubjective processes of collective deliberation in the formation of principles of justice and that this goes some distance toward explaining why the results of overlapping consensus are normatively binding. I explain why this line of argument presupposes the underlying normative importance of but reject the idea that this concept requires a universal account of validity more substantive than its status as a necessary condition for democratic society. The upshot is that, though I ultimately agree with Hedrick that of offering a universally shareable moral foundationalism for democratic society, I doubt that the project of building a reasonable political culture is much the worse for that omission. The disagreement between Hedrick and I, then, seems to be not so much about whether Rawls can offer a universal ethical foundation for the desirability of democracy we both agree that he cannot but about the desirability and necessity of 106 such a universal account of democratic moral foundations. I try to show how supporters of a political approach to justice might defend themselves against criticisms. Collective Deliberation and the Normative Force of Overlapping Consensus the Rawlsian political turn from a Habermasian perspective. The complexity of the text rewards careful study and poses a serious challenge to the very idea of the sort of political philosophy practiced by the later Rawls. As mentioned above, the critique of Rawls in the opening chapters is supposed to expose an unfulfilled need for a universally shareable account of the validity of the Rawlsian apparatus of justification. The later chapters show how the work of Habermas might be used to offer such an account in a way compatible with a significantly deflated view of reason. My strategy of response to Hedrick, then, is to argue against the need for a substantive and universally shareable account of the normatively binding nature of political justification beyond the sort Rawls offers. I explain in what sense the binding validity of political conceptions of justice ultimately derives from demands that all citizens be reasonable as a condition of democratic equality and freedom. While Rawlsian political philosophy hopes that this demand for reasonable democratic interaction can be further supported by diverse reasons internal to variously existing comprehensive doctrines, the 107 universally shareable justification for reasonableness terminates with the presumed desirability of democracy. This means that a political conception supported by reasonable overlapping consensus is ultimately bindingfrom the perspective of political philosophyonly on those who can muster resources available in the background culture of society to maintain commitment to stable democracy. Hedrick proposes that the freestanding nature of political justification traps Rawls in a dilemma from which he cannot extricate his theory. To fix general ideas, the more Rawls relies on a descriptive or non-normative factual justificatory basis for political conceptions (e.g. the simple fact of reflective equilibrium, the possibility of constructivist extensions of democratic ideas, or the achievement of overlapping consensus), the more he is unable to explain why the results of his theory are normatively binding. And, yet, the more Rawls tries to remedy this problem by offering an explanation of how his strategies of justification are normatively binding, the closer he moves toward grounding his theory in a comprehensive doctrine which would obliterate the political nature of the resulting conception. The basic problem with political approaches to justice is that, Hedrick claims, if they are to remain political in nature, they must omit a shareable substantive explanation of why their conclusions are valid and therefore binding on citizens. As such, political approaches cannot 108 provide compelling foundational reasons to treat their results as obligatory constraints on behavior. The descriptivist critique on which this line of thought rests can be presented in numerous variations. G.A. Cohen, for example, has argued against Rawls on the basis of a distinction between fact-sensitive and fact-insensitive principles of justice. 116 Cohen argues that political approaches cannot be correct accounts of justice since they are composed of fact-sensitive principles. Political approaches by their very nature start with the non-moral fact that we are citizens of a democratic society or that we have certain commitments to equality and freedom, and then proceed to construct models of extension (such as the original position) that purport to infer more controversia l conclusions. But, Cohen continues, in order to infer normative principles from facts, we must employ arguments using at least some fact-insensitive normative principle in our premises. Facts such as our citizenship in and commitment to democratic society can only offer support for normative principles if there is some premise which directs us toward the normative significance of the facts in question. In order to get from the fact that we live in a democratic society which respects universal suffrage to the fact that we ought to protect universal suffrage, for example, we need support which posits some variation of the idea that we ought to support the practices of the society we live in. Descriptive facts can never by themselves be sufficient support for a normative 116 G.A. Cohen, Rescuing Justice and Equality (Harvard University Press, 2008) 117 Hedrick, Rawls and Habermas, p.41 109 conclusion but instead must be coupled with a more primitive principle whose validity is not conditioned on the fact in question. This general line of argument is offered by Hedrick against the account of political justification on offer in Rawls. He asks the question: Why exactly do the three levels of justification point to the normatively binding nature of their results? At best brute facts, the individual achievement of reflective equilibrium, the establishment of a constructivist link from ideas implicit in democratic culture to a particular conception of justice, and the existence of overlapping consensus concerning the acceptability of a particular conception of justice do not count by themselves as explanations for the normative force of that conception. The obligatory nature of the normative results could only become clear in light of a further explanation as to why the conception which meets these conditions is to be respected. The problem, as Hedrick sees it, is that the fuller and more universal this explanation of the normative nature of the justificatory apparatus becomes, the more political philosophy must pull its resources from a particular comprehensive account of justification. But without such a normative justification, the achievement of agreement among reasonable people as to the best fact about the shared convictions of pe We can restate the problem raised here as how to describe processes of reflective equilibrium, 110 constructivism, and overlapping consensus, in short the Rawlsian account of justification, as not merely a fact, but as a normatively significant fact. Hedrick recognizes that one way to do this might be to conceive the process of justification and public reasoning as an intersubjective process of collective will formation and deliberative learning which embodies the collective operation of public reason. 118 Overlapping consensus on this view would bind us because of its status as a mark of the exercise of [overlapping consensus] as the outcome of a learning process involving agents actively seeking common ground with one another over time, until they have freely and mutually 119 But Hedrick thinks this interpretation is blocked by the dictates of the freestanding nature of political justification. He argues that the duty of civility and reciprocity that is, the duty to reason about justice in terms shareable to all only become s binding after the establishment of overlapping consensus. This is because such duties are justified by overlapping consensus and cannot operate as binding prior to its establishment when there is not yet a justified conception of justice. As such, he objects that the Rawlsian demonstration of the possibility of a just and stable democratic society is self - defeating since it requires in order to set in motion its processes of justification resources made available only at the conclusion of 118 Ibid, p.43 119 Ibid, p.43 111 those processes. This paradox bars the most likely path for the historical development of overlapping consensus. To show this, he focuses on passages in which Rawls expressly prohibits the working out of a political conception of justice with an eye toward what will likely be The political justification of a conception of justice does not permit us to simply look around at our fellow citizens and tailor our conception to their actually existent identities since attitude of petty compromise. Barring appeal to a line of reasoning simply because it happens to be controversial or offensive among citizens in our society is not what is meant by the political approach to justice. Civility and reciprocity are not duties synonymous with the sort of politically correct toleration which foremost seeks not to offend. 120 Freestanding justification does not proceed on the basis of an initial empirical inquiry into what is controversial so that we may set those notions aside and reflect on justice in terms of ideas we all share. Indeed, Hedrick consensus in political liberalism the idea I call a reasonable overlapping consensus is that the political conception is worked out first as a freestanding view that can be justified pro tanto without looking to, or trying to fit, or even knowing what are, the existing 112 121 In this sense Hedrick is correct that the construction of a Hedrick summarizes the argument: not to be conditioned by the presence of competing conceptions of justice and worldviews at least not in the first instance The normative demand to deliberate in terms that one believes will be acceptable to the other reasonable extended to the private use of reason. For a freestanding theory, the motivational force and normative authority of a conception of justice stems, for the private individual, from the emphatic claims made by the moral sources countenanced political philosophy may observe but not inhabit or criticize. This means that the normative demands of reciprocity and publicity do not apply to the initial formation of conceptions of justice, since this takes place within the sphere of private comprehensive 122 There are two distinct claims here that should be separated: (1) The philosophical or conceptual claim that duties of reciprocity and civility in short, reasonableness cannot be operative as a duty prior to the achievement of overlapping consensus, and (2)The interpretive claim that Rawls himself sees the construction of a freestanding political conception to bar collective deliberation with other comprehensive views and conceptions of justice during the process of construction. It is one thing to claim that Rawls cannot justify duties of reciprocity and civility at the very time he needs them to be binding during the construction of overlapping consensus, but a separate issue to say 113 that Rawls himself agrees that these duties are not binding for the characterization of an ideal deliberative process. Hedrick recognizes the distinction and in some cases appears to endorse both claims: political liberal collective will formation or coming to an understanding. This is problematic for Rawls, as he sometimes wants to characterize reflective equilibrium as a process of me and you coming to an understanding about the proper conception of political justice, but the demands of freestanding-ness that Rawls applies to his theory leave him unable to capture this intersubjective Setting aside for moment the question of whether he is philosophically justified in doing so, Rawls certainly does see the construction of overlapping consensus as a consciously undertaken process of collective will formation. Hedrick moves from the correctly noted fact that Rawls rejects a process which brackets specific empirically existent controversies to the much stronger attribution that Rawls believes in order to be of to be resisted. Rejecting the idea that political conceptions should be formed by outright compromise with empirically existent views is little more than a variation on the rejection of modus vivendi and does not by itself require the full rejection of all intersubjective dimensions of the formation of political conceptions. Indeed, I claim that a plausible reading of the demands of reflective equilibrium shows that Rawls fully 114 intends citizens to be bound by at least a minimal process of collective deliberation in the formation of the political conception of justice. private process whereby people monologically work up a conception of just ice in accordance with their moral political intuitions, relating it to their non - political But, again, the apparent identification of the term with is a mistake. This is true for at least two reasons. First, reflective equilibrium as characterized by Rawls requires intersubjectivity. It is a process which begins with considered judgments of all varieties and attempts to move back and forth between principles and particular judgments, adjusting each in particular ways until one is able to secure a harmonious judgments cannot be reached in isolation. Indeed, they require (at least) consideration of generally held scientific, psychological, and socio - economic doctrine. Only through engagement with widely held beliefs can one reach judgments that could rightfully be termed 123 But more importantly, Rawls demands that conceptions of justice be justified on after we have an opportunity to consider other plausible conceptions and assess their 123 Though I have no space here to develop the argument, one issue I have with Martha recent suggestion that we ought to drop the theoretical component of reasonableness i.e. the demand that comprehensive doctrines achieve minimum coherence and scientific credibility is that this component of reasonableness is part of the reason we are compelled to seek collective deliberation with others. See M. Nussbaum, Liberalism: A in Ratio Juris, Volume 24, Issue 1, p.7 115 supporting grounds. Taking this process to the limit, one seeks the conception, or plurality of conceptions, that would survive the rational consideration of all feasible 124 This is what Rawls means 125These reasons taken together are also why, in his review of modes of justification within the enterprise that Rawls calls moral theory, we may have reason to consider the results of 126 These considerations force us to conclude at the very least that Rawls conceives the demands of reflective equilibrium as they pertain to the formation of political conceptions of justice to require a conscious process of collective will formation. Part of the issue here is that Hedrick conceives the three levels of justification as a temporal sequence beginning first with pro tanto then proceeding to full justification and ending with justification own first as a freestanding view that can be justified pro tanto without looking to, or trying to fit, 116 128 The view of Rawlsian justification as a temporal succession should be supplanted by seeing the three levels of justification as operating in tandem, each functioning as a strategy and regulative ideal for reasonable citizens aimed at constructing a shareable conception of justice, but never entirely accomplished. While there is a sense in which pro tanto justification can be carried out without attention to other conceptions and comprehensive doctrinesnamely, we do not need the details of other comprehensive worldviews or conceptions of justice in order to make sure that our political conception does not appeal to metaphysical or religious doctrine, that we limit the scope of our justice claims to the basic structure, and that we construct our conception of justice on the basis of ideas implicit within shared democratic cultureachieving overlapping consensus simply cannot be done either in isolation or in temporal succession, engaging only with others post-reflective equilibrium. Such a vision portrays the achievements of reflective equilibrium as more stable and complete than they ever really are and the process of reflective equilibrium as more finite than it ever really is. 127 My emphasis 128 Political Liberalism , p.97 117 This intended interrelation between the levels of justification can be seen when of matters of justice, comprehensive doctrines can be offered in support of political conceptions of just a reasonable political conception, are presented sufficient to support whatever the 129 Far from asking citizens to hide away in isolation during the formation of their views and far from seeing the Rawls calls on citizens to engage in public explanation of the ways that their comprehensive doctrine can support a reasonable political conception of justice. 130 Where citizens have advanced justice claims to other citizens in the language of a comprehensive doctrine which cannot be publicly supported, they may be asked to revise their formation of a political concepti on in light of public exchange. Here, we see that Rawls at least attempts to make room for an ongoing intersubjective process of justification grounded in dialogical learning and collective deliberation. But even if Hedrick must back away from any interpretive claim that Rawls does not believe citizens are obliged to consider other views during formation of their to 129 Political Liberalism , p.453 130 The characterization of reciprocity and civility as emerging only the heavy lifting has been appears on p. 44 of Hedrick, Rawls and Habermas 131 Ibid, p.45 118 claim that citizens are obliged to consider the views of their fellow citizens when 131 He in fact does so by noting that comment on a process of belief formation that takes place under the auspices of an is for philosophy to intervene into private, comprehen This would amount to the assertion that Rawls cannot justify his demand that citizens be reasonable during pro tanto and full justification of the political conceptions and that this demand can only become effective upon completion of overlapping consensus. The question then becomes how can Rawls explain his demand that citizens be reasonable prior to the justification of reasonableness recommended by the achievement of overlapping consensus? The Demands of Reasonableness If the characterization of Rawlsian processes of justification has been so far correct, then the question is not whether Rawls saw the three levels of pro-tanto, full, and public justification as intersubjective processes of collective will formation. There is little doubt that he did. The task of reflective equilibrium attaches to each level of justification and makes use of collectively formed accounts of general facts and charges each individual with working through the complete range of culturally available 133 Ibid, p.391 119 conceptions of justice. The question is how political liberals can be entitled to the claim that citizens are bound to at least nascent norms of public reason and reasonableness during construction and prior to the justification of a particular conception of justice. If political liberalism cannot explain how such norms can bind the process of overlapping consensus, then the political approach to justice looks increasingly subject to the descriptivist critique. Overlapping consensus could no longer be taken to mark the justificatory force bestowed by a process of collective will formation since the norms which make such a process possible would take hold only upon its conclusion. We must explain how, in what sense, and to what degree the norms of reasonableness provide normative binding during the process of justification. The only plausible answer to the question of how we can be bound to observe and partake in the collective deliberation Rawls demands during the formation of a shareable conception of justice is to say that the norms of fairness and respect 132 These are not norms whose force arises only upon justification of a particular conception of justice, but rather has sought to give systematic expression, an image of society that the early essay as 133 Or, as Rawls puts it, Liberalism views this insistence on the whole truth in politics 132 Charles Larmore, in The Cambridge Companion to Rawls (Cambridge: Cambridge University Press, 2003), pps. 368-393 120 134 The willingness to give up insistence on the whole truth as governing basic matters of justice is the key feature of reasonable citizens who recognize the burdens of judgment and strive to live on terms of cooperation shareable by all citizens. This all-encompassing spirit of reasonableness within the Rawlsian project as we saw in the previous section can already be discerned in the three levels of justification deployed by political liberalism. Reflective equilibrium requires collective citizens to show the superiority of their preferred conception of justice vis-à -vis all existing alternatives. The constructivist method of the original position models the burdens of judgment by inserting an epistemic blockage of comprehensive doctrine. Indeed, the very language of social contract assumes from the start that justice concerns not so much the total good that can be achieved by justice, but rather, again people stand to one another as members of a in its on are at work from the very beginning of the theory and are certainly not supposed by Rawls to arise only after some particular political conception has been justified. 135 Indeed, I have argued that because processes 134 Political Liberalism , 447 135 Political Liberalism , footnote 2, 49 121 of justification are permeated by demands of public reason, the achievement of a normatively binding process of collective deliberation. Precisely, the normativity of Rawlsian processes of justification stems from the social embodiment and shared development of what will become the norms of public reason. But, as Hedrick is well aware, this argumentative strategy exposes Rawls to the descriptive critique from another angle. Supposing that demands of reasonableness operate not merely post-justification, but throughout the entire process of overlapping consensus, from where do these norms get their justification? Insofar as reasonableness 136 we may rightly ask from where and from what perspective reasonableness can be normatively binding even prior to the justificatory apparatus imagined by Rawls. It is that what is needed here is a universally shareable justification for the demands of reasonableness and that Rawlsians cannot have it without sacrificing the political character of political liberalism. Afterall, to admit that what is needed is a universal philosophical justification for the norms of reasonableness is to admit that a universally valid comprehensive doctrine lies at bottom of the Rawlsian theory. But this is precisely what political liberalism is supposed to avoid. Yet, how can the demands of reasonableness be interpreted as deriving from something other than a contingent fact 136 Habermas mentions this phrase during his offering of a similar criticism in J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: MIT Press, 1998), p.38 122 of agreement if political liberalism can offer no public standpoint from which to endorse its own apparatus of justification? It is necessary here to keep in mind the distinction between two perspectives operating within political liberalism the widely shared perspective offered by political philosophy itself and the less widely shared various comprehensive doctrines held by each citizen. There is no harm in calling the former a public perspective and the latter a private perspective, so long as we do not imagine that private is synonymous with philosophy, though it is possible that reasonable citizens will share private perspectives. One answer, then, as to how reasonableness attains its normatively binding force is from the normative resources provided by this or that comprehensive doctrine. The perspective of political philosophy does not begin from scratch. Citizens at any point may and are expected to call upon their private use of reason in order to support the demand for reasonableness. We may, therefore, seek shared terms of cooperation, depending on our preferred comprehensive doctrine, because we see others as children of God, or because we see human beings as fulfilling their nature only by the autonomous use of their moral powers, or because we see all language users as committed to a range of context-transcendent presuppositions of truth claims, or for some other reasons. The private perspective of comprehensive doctrines can be called upon to provide normative support for the demands of reasonableness prior to completion of the process of public justification. 123 What sort of justification for reasonableness is offered by the shared perspective of agreement among comprehensive doctrines concerning the demands of reasonableness should we find that such agreement exists could not plausibly be described as a simple descriptive fact. The existence of widespread agreement on the demands of reasonableness would at the very least provide reason to accept these demands on grounds that, if one of the comprehensive doctrines included within the consensus on reasonableness is correct in its affirmation, then, at least on this point, all members of the consensus are correct. The wider the consensus, then, the greater the reason each citizen has to regard this consensus as normatively binding since a larger consensus marks a greater likelihood of hitting on the truth of the matter however we understand the concept of truth in the context of our private reason. This blending of description and normativity provides an important public reason for accepting the binding nature of reasonableness prior to overlapping consensus. 137 Further, the arguments for the burdens of judgment coupled with the idea of citizens as free and equal support the claim that the stability of a democratic society depends on the embrace of reasonableness by citizens. Given the deflated account of reason on offer in Rawls, a well-ordered democratic society is not attainable by 137 Rawls makes this point in Political Liberalism , p. 153, important that if any of the reasonable comprehensive doctrines in the overlapping consensus is true, the political conception itself is true, or close thereto in the sense of being endorsed by a true doctrine. The truth of any one doctrine guarantees that all doctrines yield the right conception of political justice, even though all are not right for the right reasons as given by the one true doctrine. So, as we have said, when citizens differ, not all can be fully correct; yet if one of their doctrines should be true, all citizens are correct, politically speaking 124 convergence on comprehensive doctrines. In the absence of oppressive state policy, citizens will disagree about the ultimate bases of justice. These conclusions prompt us to view the demands of reasonableness and publicity as the necessary conditions of a stable democracy. The importance of reasonableness and publicity can be seen, furthermore, from the vantage point of the pub lic perspective. Habermasians can here push two lines of argument: First, supposing that the general demands of reasonableness can be made convincing from a public perspective, it is still the case that prior to overlapping consensus there exists no justified account of public reason that can be used in public debate. As such, the attempt to paint political liberal justification as an intersubjective process fails if for no other reason than its necessary lack of any shared language in terms of which an intersubjective process might take shape. We political liberals should here grant that prior to the complete justification of a conception of justice, citizens may find themselves lacking a shared basis of public reason. This existing social division may require in order to preserve the collective nature of justification that citizens be permitted appeals to their comprehensive doctrines even in public debate on matters of basic justice. Indeed, Rawls explicitly grants as much when says in such cases where there does not yet exist any generally accepted political language, i.e. no constructed conception of justice or norms of public reason, citizens may advance argument on the basis of their comprehensive doctrines, provided such uses are motivated by the desire to preserve 125 the ideal of public reason in the long run. 138 This was clearly the view spelled out in the first edition of Political Liberalism. And, as mentioned above, Rawls eventually weakened his restrictions on appeals to comprehensive doctrines even further by adding the proviso that such appeals to private reason could be made so long as they could be publicly connected to the public use of reason. Again, what must be emphasized here is that public norms of reasonableness according to which we are demanded to pursue collective deliberation grounded in the very notion of a well- ordered, stable democratic society which recognizes the burdens of judgment exist at all points in the process of justification. It is this common embrace of reasonableness that makes collective deliberation possible and which renders its results, not merely some descriptive fact of agreement, but infused with normativity. But and here is the second objection which can be levelled by Habermasians even supposing the demands of reasonableness are recommended by the concept of a stable, well-ordered democracy, and supposing that citizens committed to democratic reasonableness can find a way to deliberate collectively even prior to the public justification of a conception of justice and norms of public reason, from where does the concept of democracy attain its status as normatively binding? Are we simply to begin critique appear once again in a finally decisive form? 138 PL, 247, 251. Also, Larmore, p.385 126 We should here again reiterate the publicly shareable perspective given above which allows us to see the respective values of stability and the general increase in epistemic probability provided by widespread reasonable agreement. There are many reasons to believe that democratic societies are more stable than other sorts of societies. 139 Also, insofar as any given conclusion is supported by a community o f reasonable people, this fact alone counts as reinforcement of the validity of the claim since shared support among reasonable people counts as a mark of public reason at work. Where there is consensus among reasonable citizens, the correctness of one reasonable citizen verifies the correctness of all if not the supporting reasons of all on at least whatever point is in question. But beyond stability and epistemic reinforcement, we should admit that the normatively binding reasons which support democracy must arise from the private resources of comprehensive doctrines. But, given the argument presented in this chapter, it is not clear why this is a problem for political liberalism and the building of a reasonable democratic culture. Nothing about political liberalism prohibits citizens from taking advantage of Habermasian discourse ethics or any other reasonable philosophical account as a private doctrine from which to draw motivation for reasonableness and democratic practice. Rather, political liberalism makes such foundational narratives available with all the others so that citizens can make use of their moral powers to select freely among 139 Two very different kinds of argument in favor of democratic stability are made by: A. Sen, Development as Freedom (New York: Anchor, 2000) and F. Fukayama, The End of History (New York: Free Press, 2006). 127 them. If it turns out that a given comprehensive doctrine should win out under free conditions over the course of time, there is nothing in political liberalism to discourage such an outcome. So, if Habermasians are correct that democracy requires publicly shareable accounts of validity and intersubjective reason, then presumably such doctrines can be developed and embraced under conditions of free choice. But the very nature of democratic dealings requires that no reasonable comprehensive doctrine be shut out of overlapping consensus. Indeed, the availability of diverse comprehensive doctrines creates conditions that further the freedom and eq uality of each citizen. Again, if one doctrine which supports the plural grounding of an overlapping consensus on any given point happens to hit upon universal truth, political liberalism provides the consolation that all who join the consensus on that point for whatever reasons can partake in universal metaphysical validity. 140 But none of this points to a need to develop a single, univocal account of validity. Conclusion The particular political conception of justice known as justice - as - fairness is not the most important legacy of Rawlsian thought. Rather, his most precious insight is that building a stable and just democratic culture under conditions of pluralism and social fragmentation requires cultivating overriding commitment among citizens to the 140 I take the term from Amartya Sen as he uses it in his recent book A. Sen, The Idea of Justice (Belknap Press, 2011), especially Chapter 17. 128 reasonable desire to regulate cooperation in terms of a shared conception of justice. He shows us that political philosophy can contributing to this by showing citizens how to build and bring make their own views of justice compatible with a freestanding view of justice capable of being shared by others who hold competing and irreconcilable comprehensive doctrines but who nonetheless are committed to living together on terms all can accept. In this sense, political philosophy can come to play a role not as arbiter of metaphysical truth but as a mode of investigation which looks for ideas implicit in democratic practice and attempts to elaborate those ideas in ways that make reconciliation possible. The Rawlsian construction of justice- as-fairness is one particular way of embodying reasonableness and publicity under conditions of a deflated account which meet the demands of political liberalism. There are other possibilities that I will turn to in chapters 4 and 5. In this chapter, I have argued that political liberalism is a viable solution to offering a democratic conception of justice under social conditions stretched between the sort of reasonable plural valuation we should expect in multicultural society and the need for stability. I hope to have shown that political justification as conceived by political liberals is or can be understood as a process of collective deliberation worthy of the name deliberative democracy. This essentially intersubjective nature of political justification is the primary source from which its results gain their normatively binding force. I have granted that political liberalism of course ultimately relies on the private 129 reasons provided by the various comprehensive doctrines available within a society, but that the task of building a reasonable democratic culture is not the worse for this. The availability of a multiplicity of reasonable comprehensive doctrines creates the conditions for each citizen to deploy their own powers of reason in accord with their status as free and equal citizens. In later chapters, I will both defend and qualify my commitment to the particular political construction of justice offered by Rawls, namely, I will defend a political liberal attribution of primacy to domestic basic structures and I will reject the Rawlsian doctrine of social primary goods. Nonetheless, whatever qualifications of Rawls I have to offer occur from within the political liberal framework. 130 Chapter 3 Political Liberalism and the Duty of Background Justice I defended in Chapter 2 the idea that stable and just multicultural democratic societies depend foremost on creating a leading culture of reasonable citizens committed to developing together and living cooperatively according to shareable principles of justice. I used the work of John Rawls as a guide to provide a philosophical outline for some of the central concerns held by reasonable citizens, especially the question of how it is possible to d evelop freestanding general conceptions of justice in collective deliberation with others. A next step is to understand how and why the freestanding logic of political justice recommends treating the basic structure of each society as the primary subject o f justice. I show that the basic structure is basic in the sense that a just institutional design ought to be treated as a necessary but insufficient condition for the establishment of social justice. Precisely, basic structures ought to guarantee what Rawls calls background justice or the primary institutional norms of each society within which individual citizens live out their lives. 141 I argue, however, that the distinction between the basic structure and choices made within t hat 141 It should be clear at this point that while I endorse the concept of background justice, I do not endorse the complete defensibility of the Rawlsian conception of background justice. Though I signaled as much in chapter 2, this point becomes especially clear in chapters 4 and 5 which signal my distance from both Law of Peoples and the doctrine of social primary goods. 131 structure was not intended and need not leave personal choice uninformed by the principles of justice and, therefore, is not necessarily lax toward self-interested behavior that may conflict with maintaining the just institutional design. Nonetheless, there remains a clear and indispensable sense in which the principles appropriate for the basic structure are not exhaustively appropriate for the regulation of individual conduct. The first section explains and defends the concept of background justice using Nozick's libertarianism as a counterpoint. I explain why Rawls thought that a central weakness of libertarian thinking is that it neglects the importance of background justice of liberty the positive conditions that enable the effective use of non-interference rights is central to the entitlement of free and equal democratic citizenship. The second section shows why a focus on institutional basic structures is needed to discharge duties to promote entitlements of background justice if we are to remain true to the demands for reasonableness in the political liberal approach to justice. The Rawlsian emphasis that duties to promote the positive entitlements necessary for effective liberty ought to be discharged in the first instance through the design of basic structures represents a much needed improvement vis-a -vis approaches to liberalism, e.g. Utilitarianism, which defines no central role for the basic structure. I explain in greater detail what is meant by the primacy of the basic structure as it operates in the work of John Rawls and defend his institutionalism against claims by G.A. Cohen that such thinking has 132 due to its lax admission of personal choice grounded in profit maximization and economic self-interest. 142 Ultimately, the point of the chapter is to show that Rawlsian institutional thinking cannot be plausibly accused as is often attempted of devising a public- private split and then ignoring the latter. There is ample room in the Rawlsian approach to acknowledge and constrain personal choice and individual behavior, though institutions for several reasons remain the centerpiece of political liberal politics. Primary principles of justice apply directly to institutional design and indirectly to the behavior of citizens. If this chapter is able to defend the closely related notions of background justice and the primacy of the basic structure against criticisms which claim they cannot adequately deal with the micro-processes of personal choice, I will have paved the way for a consideration in chapter 4 of some normatively binding relations between basic structures and the macro-processes of the global order. The Entitlement of Background Justice The historical development of liberalism, fully enmeshed as it was in the context and precise political problems of monarchy, yielded a thinking focused on threats posed to human freedom by individual and collective acts of explicit coercion. Liberal 142 G.A. Cohen, Rescuing Justice and Equality (Cambridge: Harvard University Press, 2008). Also considered is Sen's closely related critique of 'transcendental institutionalism' in A. Sen, The Idea of Justice (Harvard University Press,2009). 133 justice has always placed special emphasis on the demand that state power be exercised in ways which respect procedural rights to non-interference; including liberties of religion, speech, association, private life, the use of personal property, and so on. As Sen puts it, a defining feature of liberalism is the should have a recognized personal sphere in which his preference and his alone would count 143 Locke emphasized that each person as a matter of justice was entitled without interference to the product of their honest labor provided that the common bed of resources left a reasonable opportunity for others to make a living. 144 John Stuart Mill went so far as to claim that the protection of liberty rights was the key to maximizing aggregate utility over the long run. 145 In the hands of 20 th century libertarian philosophers such as Robert Nozick, concern for liberty was taken to constitute the entirety of justice entitlements with no corresponding concern for the effective ability of citizens to employ those liberties toward valued ends. Justice was distilled to a strict focus on negative procedural rights was (pace Mill) to establish a distinction between historical principles i.e. procedural 143 A.Sen, and Social in Rationality and Freedom (Cambridge: Harvard University Press, 2002), within his Lectures on the History of Political Philosophy, in broad terms, the content of a liberal political conception of justice has three main elements: a list of equal basic rights and liberties, a priority for these freedoms, and an assurance that all members of society have adequate all-purpose means to make use of these p.12 144 Rawls, Lectures on the History of Political Philosophy , p.103 145 Ibid, p.289 134 principles which guarantee non-interference rights and end-state principles which guarantee certain cumulative outcomes. 146 He then insisted principles of liberty are historical principles which cannot, as a matter of consistency, be reconciled with patterned end-state principles which demand substantive distributive outcomes like equal opportunity or limitations on wealth inequalities since such end-state principles would inevitably be disrupted by the choices of individuals exercising their liberty rights. He argued that we are faced with a zero-sum trade-off between procedure and outcome and that the two cannot be reconciled. This supposed irreconcilability of process and outcome aspects of freedom is upsets 147 The only coherent way to respect liberty, Nozick claimed, was to understand individual liberty rights, not as ideal tools for the maximization of long run utility, but as - or absolute procedural protections guaranteeing citizens decision power over just holdings. A truly free society requires no particular result from the exercise of freedom so long as non-interference protections are guaranteed to all. Any design of the state motivated by greater substantive egalitarian concern would inevitab ly render impotent the liberty rights owed to citizens as a matter of justice. 148 146 R.Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), pps.153- 155147 Ibid, p.160 148 As Nozick puts it: main conclusions about the state are that a minimal state, limited to the narrow functions of protections against force, theft, fraud, enforcement of contracts, and so on, is justified; that any more extensive state will violate rights not to be forced to do certain things, and is p. ix. 135 So, a typical feature of libertarian views in the 20 th century included opposition to any interference with de facto procedural consent such as federal equal opportunity laws which prevented discrimination on the basis of religion, sex, race, or disability, public housing, or social security. 149 Insofar as libertarians prioritize liberty but exclude concern for positive entitlements necessary to guarantee effective or fair worth of liberty, Rawls contends libertarian vie ws are not liberal. 150 Let us look closer at this difference between liberal and libertarian thinking. In the first instance, libertarians begin quite plausibly with the idea that our acquisitions and general relationships ought to be voluntary and fair, each respecting participant individuals as owners of their talents and efforts. But it immediately becomes apparent that libertarian principles fail to specify the social circumstances as opposed to the specific behaviors of other agents under which volunt ary agreements are to be conceived as voluntary rather than coercive or unfair. The principles of just acquisition and just transfer are supposed to be strictly interactional principles and do not specify the general state of affairs under which choices ar e undertaken by agents. 151 Indeed, 149 Milton book Capitalism and Freedom represents a popular example. M. Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 2002). It should be noted, however, that Friedman did support redistributive taxation to the poor through earned - income credit schemes. As an economist, his primary concern was that the market be allowed to function without state intervention . 150 are views, often described as liberal, for example, libertarian views, that exemplify the third element of assuring to citizens adequate all - purpose means to make use of their freedoms. But the fact that it Lectures on the History of Political Philosophy , p.13 136 Nozick sometimes writes as if justice is entirely indifferent to the background conditions within which human beings are to exercise their liberties, as, for example, when he claims: Individual rights are co - possible; each person may exercise his rights as he chooses. The exercise of these rights fixes some features of the world. Within the constraints of these fixed features, a choice may be made by a social choice mechanism based upo n a social ordering; if there are any choices left to make! Rights do not determine a social ordering but instead set the constraints within which a social choice is to be made, by excluding certain alternatives, fixing others, and so on. 152 Nonetheless, there is an interesting exegetical point concerning whether the Lockean proviso can be interpreted as an end - state principle advancing reasonable opportunity. Nozick denies this. 153 an - state prin affect others, and not on the structure of the situation that But one might wonder if this is not a distortion of ostensibly straightforward claim that and as must remain for others. The principle seems to directly constrain liberties of appropriation by reference to requisite availability of natural resources. That is, the proviso seems to restrict procedural protections by reference to opportunity outcomes. 151 I take the terms interactional and institutional from Thomas work. The former refers to principles which govern proper relations between people, the latter refers to principles which govern the proper design of institutions. See T. Pogge, Realizing Rawls (Cornell: Cornell University Press,1989) 152 Anarchy, State, and Utopia , p.166. 153 Ibid, p.181 137 Michael Otsuka interprets the Lockean proviso in precisely this manner when he argues a properly previously unowned worldly resources if and only if you leave enough so that everyone else can 154 In this view, the proviso specifies that liberties for property appropriation are limited by the demand for reasonable (not necessarily fair or equal) opportunity to property appropriation. 155 Aside from this exegetical controversy, however, the importance of the Rawlsian gesture l ies in his attempt to generalize the co - constitutive relation of liberty and opportunity (of procedure and outcome) by conceiving freedom not simply as liberty but by attempting to grasp simultaneously the conditions required for meaningful and effective l iberty. In lecture VII of Political Liberalism Rawls makes clear why it is that minimal concern with liberty is exercised is simply not enough to maintain just relations. The protection of genuinely voluntary or free action a purpose essential to libertari anism refers not merely to absence of interference by the state or others, but to a complete range of potential obstacles constituted by the state - of - affairs in which the act occurs. Rawls generalizes this point in light of reflections on the importance of background justice: 154 M. Otsuka, - Ownership and Equality, A Lockean in Left - Libertarianism and Its Critics (Palgrave - MacMillan, 2001) 155 Lectures in the History of Political Philosophy , p. 146. There he claims, third natural right is to be respected: all have the liberty of use, or of access to the great common of the world, so that in return for their honest industry they can earn the means of life. This is a principle of reasonable opportunity. Here we say equal, or fair, opportunity; these terms appear too strong for what Locke has in mind. Nevertheless, this reasonable opportunity is of great significance 138 [S]uppose we begin with the initially attractive idea that social circumstances inaccordance with free agreements fairly arrived at and fully honored. Straightaway we need an account of when agreements are free and the social circumstances under which they are reached are fair. In addition, while these conditions may be fair at an earlier time, the accumulated results of many separate and ostensibly fair agreements, together with social trends and historical contingencies, are likely in the course of time to alter relationships and opportunities so that the conditions for free and fair agreements no longer hold. 156 The importance of outcome entitlements (or end-state principles) arises immanently from procedural entitlements. Liberals agree with libertarians that treating citizens as free and equal entails foremost the protection of liberty, but insist that justice also entitles individuals to a substantive state of affairs in which they may make effective use of those liberties. Otherwise, the worth of those liberties is severely compromised. The insufficiency of liberty by itself is why Rawls insists on two distinct principles of justice. The first principle guarantees a large scheme of basic liberties and the second maximizes the value or worth of those liberties. Nozick's apparatus on the other hand neglects entirely the worth of liberties. His theory provides liberty entitlements that in the absence of certain social circumstances cannot be used to pursue the ends citizens have reasons to value. 157 156 Rawls, Political Liberalism 157 inability to take advantage of rights and opportunities as a result of poverty and ignorance, and a lack of means generally, is sometimes counted among the constraints definitive of liberty. I shall not, however, say this, but rather I shall think of these things as affecting the worth of liberty, the value to individuals of the rights that the first principle liberty and the worth of liberty to persons and groups depends upon their 139 even more than Nozick himself. It is true that protection of universal liberty has the potential to upset social patterns in the distribution of holdings, but for this reason negative protections alone cannot be prioritized to the absolute exclusion of concern for social outcomes. Strict respect for liberty by itself includes the possibility of overturning the very o pportunity conditions necessary for the universalization of effective liberty. This is why freedom cannot be interpreted as merely a procedural value guaranteed by adherence to a mere historical principle because such procedural protections can only be eff ectively actualized against the of certain end state principles; liberty only becomes effective against the background of social conditions which provide specific opportunities. So, the libertarian stands accused of a reductionist acco unt of freedom, counterproductive precisely because such narrowness ultimately undermines the very basis of opportunity or the worth presupposed by effective liberty. Again, let us repeat, this is why Rawls claims that in a just liberal society there is n ot one but, rather, two principles of justice the first which guarantees a scheme of capacity to advance their ends within the framework the system defines. Freedom as equal liberty is the same for all; the question of compensating for lesser liberty does not arise. But the worth of liberty is not the same for everyone. Some have greater authority and wealth, and therefore greater means to achieve their aims. The lesser worth of liberty is, however, compensated for, since the capacity of the less fortunate members of society to achieve their aims would be even less were they not to accept the existing inequalities whenever the difference principle is satisfied. But compensating for the lesser worth of freedom is not to be confused with making good an unequal liberty. Taking the two principles together the basic structure is to be arranged to maximize the worth to the least advantaged of the complete scheme of equal liberty shared by all. This defines the end of social (TJ, 179) This liberal idea that free and democratic citizenship requires the protection of process freedoms and outcome freedoms is particularly important for the discussion of capability and social primary goods in Chapter 5. 140 universalized liberties and a second which regulates the scheme of opportunities necessary to guarantee the worth of those liberties. Though I am primarily concerned in this volume to defend the general political liberal approach to justice and not the specific construction of the two principles of about justice provides reason to be concerned with both liberty and the worth of liberty. 158 Justice requires not only respect for negative procedural rights, but also for basic entitlements that allow citizens to utilize procedures in the effective pursuit of their reasonable ends. I take seriously that justice guarantees an entitlement to and an obligation to provide a schema of opportunities Rawls calls background justice. Part of the reason for this is that our current situation of vast inequality of wealth and opportunity functions precisely as a historical reductio ad absurdum of the merely procedural interpretation of freedom. When the freedom and equality owed as a matter of justice is conceptualized as liberty alone, the underlying inequalities in the worth of that liberty allow some social groups to capture political processes in ways that threaten even those merely formal protections themselves. The result is that it becomes increasingly impossible to sustain even the illusory veneer of formal liberty as we are well reminded by current elite domination of the political process. 158 This is a point that I will return to in Chapter 5 when I defend the capability approach against the doctrine of social primary goods as a political liberal account of the good. 141 In addition, the libertarian view of justice in its various rightwing versions have reinforced the hegemonic rise of neoliberal economic policies since the 1970s which mistakenly argue that social progress can best be advanced by promoting freedoms and skills of business owners through institutions that support private property rights, free markets, and free trade. 159 According to this economic philosophy, the role of the state should be limited to providing and maintaining the necessary conditions for these to uphold market operat ions and, if necessary, creating markets through privatization of specific goods. While (rightwing) libertarians emphasize that the only normatively justified state is a minimal state which upholds the protection of negative liberties and nothing more, neo is economically inefficient because such bureaucracies lack the information necessary to improve upon production decisions grounded in market signals and because politicians would inevitably use centralized state power for the benefit of themselves and a narrow sliver of their most powerful constituencies. 160 In this sense, libertarian theories of justice justify the neglect of equitable opportunities constitutive of background justice while neol iberal economic theory takes that legitimation as a green light to emphasize procedural values such as efficiency and growth. 159 For a concise definition of neoliberalism see David Harvey, A Brief History of Neoliberalism (Oxford University Press, 2005). See also J. Stiglitz, Globalization and Its Discontents (New York: W.W. Norton Company, 2002), especially Chapter 3. 160 Among the classic statements that combined libertarian normativity and neoliberal economic theory is M. Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 2002) 142 Discharging the Duty of Background Justice If we are persuaded to take onboard the Rawlsian point that democratic freedom and equality ultimately requires effective liberty undergirded by entitlements of background justice and his claim that even ostensibly fair individual interactions will tend toward unfairness and unfreedom over time, it becomes hard to agree with Nozick and other pro - market enthusiasts t hat competitive capitalist markets could by themselves guarantee justice. But the entitlements of background justice raise tough questions about how corresponding positive duties may be discharged in a reasonable way. In a first approach, Thomas Pogge has offered a helpful typology that clarifies three sorts of causal factors relevant to liberty and opportunity entitlements: 1. Individual Acts, 2. Individual Omissions, and 3. Social Institutions. 161 It should be plain that all three causal types are constitutively related to one another. Every individual act also entails some individual omission, since making a choice always requires giving up some other possibility of action. Similarly, both acts and omissions occur within a social space constituted by the basic norms of institutions, even as social institutions themselves are founded and operate only through the behavior of individuals who create and sustain them. Still, the typology is useful for distinguishing between approaches to justice that prioritize this or that causal type as the primary focus of our obligations. 161 T. Pogge, Poverty as a Human Rights in Freedom from Poverty as a Human Right (Oxford University Press, 2007) 1 62 F o r a r e c e n t s tat e m e n t o f S i n g e r s b a s i c a rg u m e n t , s e e P . S i n g e r , T h e L i f e Y o u C a n Sa v e : A c t i n g N o w t o End Wo r l d P o v e r t y ( R a nd o m H o u s e , 2 0 09 ). T h e qu ot e a pp e a rs o n p . 17. 143 If libertarians fail to prioritize the importance of background justice, Utilitarians offer no primary causal site for its discharge. For them, justice demands whatever acts, omissions, and social institutions are necessary for the maximization of aggregate utility. Peter Singer, for example, famously argues that we are obligated to expend our can 162 His basic argumentative s trategy is to isolate certain widely held moral intuitions in stylized thought experiments that strongly profess positive duties to help suffering and dying human beings and, then, to extend these intuitions to broader contexts by arguing there are no morally relevant differences between the thought - experimental situations and all people have a duty to be working full - time toward the alleviation of poverty and severe depri vation. life projects i.e. projects which do not contribute directly to the protection of basic entitlements of background justice plays a large role in the classical libertarian he sitancy to recognize positive outcome entitlements over and beyond procedural side constraints. Once we grant that justice requires not only negative protections but also series of positive enabling social circumstances constitutive of background justice, 144 libertarians fear that liberty itself would be crushed under the obligation to promote justice. 163 the pursuit of activities which do not maximize the reduction of suffering and death e.g. having a child, learning to play guitar, developing a romantic relationship, or studying philosophy are unjust. 164 justice leaves little room for just individuals to utilize the protections of liberty in exercising practical reason. Justice is supposed to demand individuals convert themselves to the single-minded promotion of basic opportunity entitlements for all. At this point we remind ourselves of the central conclusion of chapter 2, namely, that reasonable citizens are committed to conducting politics on the basis of a conception of justice which is shareable and which expects some significant amount of reasonable disagreement about the proper ends of life. Only this democratic commitment creates the possibility of a stable multicultural society which respects citizens as free and equal. Democratic citizens see themselves as entitled to receive and obligated to provide to others a certain kind of justification for the design of major sources of power, namely a justification that recognizes the burdens of judgment and does not depend upon any particular religious or metaphysical conception of the world. 163 See C. Taylor, Wrong with Negative in The Idea of Freedom, ed. Alan Ryan (Oxford: Oxford University Press, 1979), 175-93. 164 Aware of this strange conclusion, Singer attempts to justify certain prerogatives of individual choice, thought he abstract formulation he offers does not appear to adequately deal with the challenge. See P. Singer, Our Obligations to Those Beyond Our in D. Chatterjee (ed) The Ethics of Assistance: Morality and the Distant Needy (Cambridge: Cambridge University Press, 2004), pps. 11-32. 145 We embody the commitment to reasonableness by insisting that our conceptions of justice be freestanding. But recognizing the burdens of judgment requires more than offering a conception of justice which avoids appeal to particular rel igious or metaphysical premises. In addition, political liberalism requires dropping expectation that primary principles of justice be appropriate for every aspect of our personal lives. In order to embrace this limitation, political liberalism purports to be appropriate only for the design of basic structural institutions and not as a set of comprehensive principles for how to live. This is what is meant by the idea that political liberalism stitutional principles of justice. 165 Unlike Singer and other Utilitarians, political liberalism takes a stand on the more limited domain of institutional design as a part of its general ecumenical strategy to respect the burdens of judgment. Placing prima ry responsibility for justice on the basic structural design of institutions is an attempt in the first instance to show that justice can include positive duties of background justice without placing unreasonably demanding burdens on individuals. It respec ts a slogan Thomas Nagel has made much 166 Conceptions of justice that recommend the discharge of primary obligations through support for certain basic institutional designs helps to respect this fact. 165 A full explanation of this term appears on p.267 of Political Liberalism 166 T. Nagel, and in The Cambridge Companion to Rawls 146 In characterizing the basic structure as the primary subject of justice, Rawls provides a general characterization of such structures as political constitution and special be appropriate for the basic structure say, the difference principle or some other distributive principle may not be appropriate for personal choice or private associations such as families or universities. It is arguably improper or at least potentially counterintuitive, for example, to require churches or universities to limit inequalities to those which benefit the least advantaged. These associations have a certain sovereignty that may not be subject to principles appropriate for major socio- economic institutions. What features make basic structural institutions so special from the perspective of justice? A primary reason is that the effects of the scheme of major socio-economic 167 The basic structure the wants and aspirations that its citizens come to have. It determines in part the sort of socio- economic institutions satisfy wants but they also productively create them. This unavoidable productivity of identity means that principles for the design of the basic structure presuppose an account of human good and how it ought to be realized. Because there can only be one basic structure, its design must be shared by all. Unlike 167 Rawls, Theory of Justice , p.7 147 interactional principles, we cannot tailor the design of major institutions to the idiosyncratic specificities of each individual. We cannot simply agree to disagree about the justice of institutions. We are bound collectively to the profound constitutive effects of our shared institutions what Foucault called their and it is for this reason that institutional design is such a special case, especially in need of political or shareable principles of justice. It may be obvious that the political constitution of a country along with the legal system and other socio - economic institutions profoundly shape identity, behavior, and th e burdens and benefits of social cooperation, but let us remind ourselves. In the US context we can think not only of the country as it was prior to the passage of the 19 th amendment, prior to the overturning of Jim Crow laws, or life for many Americans pr ior to the safety nets enacted during the New Deal. We can also think of the direct correlation between growing inequality of wealth and income on one hand and, on the other hand, policies concerning taxation, interest rates, deregulation, investments in education, and foreign trade. Indeed, J. Stiglitz argues that much of the massive inequality in the US results from of the game that are tilted to advantage those including financial sector policies that allow banks to take excessive ri sk, policies of subsidy for big corporations, and poorly designed taxation schemes whic h allow loopholes and avoidance. 148 While there are ongoing disagreements among economists and others who study these issues concerning which causal factors are primarily r esponsible for economic growth e.g. do economic institutions tend to evolve toward efficiency over the long run or is the rise and fall of growth dependent upon the decisions of a contingently ruling elite who may push institutions toward inefficiency for their own gain? there is no doubt that design of economic and political institutions taken as a whole are primary determinants of wealth and income. 169 Further, it is important to note a point that will be emphasized in Chapter 5, namely, that even succes sful economic institutions with high levels of growth do not guarantee equitable distribution of the wealth they produce. As Thomas Picketty has emphasized, the fact that wealth is noticeably less concentrated in Europe today than it was in the Belle Epoq ue is largely a consequence of accidental events (the shocks of 1914 - 1945) and specific institutions such as taxation of capital and its income. If those institutions were ultimately destroyed, there would a high risk of seeing inequalities of wealth close to those observed in the past or, under certain conditions, even higher. 170 168 J. Stiglitz, The Price of Inequal ity: How Divided Society Endangers Our Future (London: W.W. Norton& Company, 2012), pps. 332 - 363 169 See the excellent discussion of these issues as they relate to the Industrial Revolution and global inequalities of wealth today in G. Clark, A Farewell to Alms: A Brief Economic History of the World (Princeton: Princeton University Press, 2007), pps.208 - 229. 170 T. Picketty, Capital in the Twenty - First Century (Cambridge: The Belknap Press of Harvard University, 2014), p.376 149 The institutionalism of Rawlsian political liberalism directs citizens to turn our attention to the functioning of institutions (or at least to demand that our representatives do so) in order to design the power of institutions in ways that prioritize the basic entitlements of background justice. Further, in addition to the incredible causal power of institutions, Rawls points out on 171 This is because be and 172 But, however we end up defining the basic entitlements of background justice, discharging this duty at the interactional leve l would imply deep knowledge of the social consequences of our individual actions. The problem here is that socio - economic conditions are today simply too complex to expect each person to understand the impact of their personal consumption and life choices on background justice. When I make a consumption choice, say, for example, the purchase of bananas, it is basically impossible for me to understand what the results of this s hould I react? Will my boycott of the company compel them to change practices or will it 171 Rawls, Political Liberalism , p. 267 172 Ibid, p.268 150 simply succeed in incentivizing the firing of workers, worsening the situation of those I had intended to help? What this predicament means is that, beyond protecting the legitimate personal prerogatives of individuals, the assignment of primary responsibility for background justice to our institutional structures is grounded in the impossibili ty of securing background justice with disconnected individual behavior. 173 It is not that Rawls is simply protecting a private sphere in which individuals may pursue the reasonable ends of their own comprehensive doctrines, though this is a central element of a reasonable political conception. Nor is it that Rawls permits individuals to outsource entirely their obligations to institutions leaving their personal choices uninformed by the demands of social justice. We have seen that the importance of t he design of the basic structure comes in large part because institutions are formative of individuals at crucial aspect of social justice, namely the scheme of backgroun d justice, which cannot be protected and sustained by individuals qua individuals who necessarily lack the required information and causal power. Interactional principles are insufficient for social justice. The creation and preservation of background jus tice must be conducted continually adjust and compensate for the inevitable tendencies away from background fairness, for 173 We should have nothing against the recent emphasis of the left on responsible personal consumption e.g. buying organic and fair trade products or recycling our waste but what Rawls correctly saw is that these individual strategies do not form the core of a serious solution to the challenge of securing background justice. 151 example, such operations as income and inheritance taxation designed to even the ownership of 174 The above characterization of what Rawls has in mind by lending primacy to the basic structure prepares us to assess the challenge offered by G.A. Cohen. 175 of the difference principle. 176 In particular, he claims that though the difference principle prohibits inequ alities in the holdings of social primary goods when they are unnecessary for improving the position of the least advantaged, the principle is ambiguous as to which causal factors are to be counted as necessary. On the strict interpretation of that princip le which Cohen favors, justice prohibits inequalities resulting from high incentive demands for work which, if left unperformed, would decrease the holdings of to undertake such work, not simply unwillingness. Cohen argues that those committed to the difference principle as both he and Rawls believe all citizens in a well - ordered society are will constrain their personal economic choices to demands for incentives necessary to overcome the impossibility of completing the work with less compensation. 174 Ibid, p.268 175 G.A. Cohen, Rescuing Justice and Equality (Harvard University Press, 2008). See also G.A. Cohen, If You're an Egalitarian, How Come You're So Rich? (Harvard University Press, 2001) 176 We should note that Phillipe Van Parijs makes a very similar argument in P.V. Parijs, in S. Freeman (ed) The Cambridge Companion to Rawls , pps.200 - 240 152 To see the necessary inequality consider the following discussion between members of the well-off and worse off social classes 177 : Well- you and me better off, provided I get a bigger share than Worse- that justice requires Well- better, both of us, you understand, may require differential incentive payments to people like Worse- Well- I Worse- Well- Worse- justice, Well- In light of this intuition pump, Cohen argues that the strict interpretation of the difference principle is correct because it prohibits inequalities necessary only because some citizens lack commitment to the difference principle in their personal choices. The inequalities between the well-off and the worse-off in the above scenario exist only because the well-off individual does not bind himself to contribute to fuller realization 177 This imagined conversation first appears in J. Narveson, on Equal Distribution of in Philosophia 7 (1978): pps. 281-292. It is reprinted in Rescuing Justice and Equality at p. 27. 153 of the difference principle. It that this well-off individual is unable to work for less; it is that he is unwilling. At this point, however, Cohen imagines Rawls objecting to the strict permits inequalities resulting from personal demands by the well-off for larger economic incentives. The lax interpretation emphasizes that that the principles of justice pertain only to the design of the basic structure and not, even indirectly, to personal choices at the interactional level. The well-off individual who maximizes market returns can report quite readily that he is committed to the difference principle so long as it is understood as merely an institutional principle and not as a guide to personal conduct. He endorses only the inequalities necessary to benefit the least advantaged. But, our well- off citizen points out, it just so happens that these inequalities are necessary since he and other members of the well-off classes refuse to work for less. But since, the argument continues, the difference principle says nothing about these personal choices, it does not prohibit such refusal but permits citizens to maximize profit in the marketplace by using their bargaining power even when such economic decisions produce large inequalities. Cohen draws from these considerations the conclusion that principles of social justice must be conceived as regulating personal choice and 'private behavior' in addition to the design of the basic structure. If we conceive principles of social justice as simply pertaining to the basic structure and not to the individual choices citizens make, 154 then we place a significant source of profound and pervasive influence on the holdings of social primary goods beyond the scope of justice. Further, the egalitarian content of the difference principle would become nearly indeterminate since, on the lax interpretation, the principle is fully compatible with large inequalities in cases where the talented classes demand disproportionate payment in return for the deployment of their talents. The lax interpretation of the difference principle permits talented classes to engage in ruthless pursuit of profit maximization so long as they can show that relative to the baseline outcomes that would result should their work go undone the inequalities are advantageous to the poor. But, Cohen claims, this possibility is irreconcilable with the egalitarian spirit we find in Rawls. He concludes that principles of justice require an ethos of justice among citizens, not simply well - designed institutions. Before responding to Cohen's objections to the Rawlsian primacy of the basic structure, a connection should be drawn between Cohen's work and the critique of 178 Sen characterizes Rawls as engaged in a search for ideal principles of democratic institutions without su fficient consideration of behavior undertaken by citizens. But, Sen urges, the proper design of institutions cannot be separated from questions of behavior since what we need from institutional design depends in large part on existent forms of behavior. If, as is arguably the case, we are dealing with a culture whose talented classes are 178 A. Sen, The Idea of Justice (Belknap Press of Harvard University Press, 2009) 155 foremost interested in profit maximization, then our institutions must take that behavior into account and be designed accordingly. Sen's reproach dovetails with Cohen insofar as both set out to remind Rawlsians that institutional design and individual interactions are inextricably linked and that principles for the former cannot regard the latter. This point is taken by Sen as a crucial piece of evidence suggesting that the horizon of the Rawlsian approach is limited in such a way so as to recommend its abandonment. 179 The core difficulty with both Cohen's and Sen's critique of Rawls is that they assume a misreading of the basic structure and its relation to personal choice. Both wrongly suppose that lending primacy to the basic structure entails leaving personal choice entirely or at least mostly beyond the purview of justice. Sen cannot be clearer: "The idea that people will spontaneously do what they agreed to do in the original 179 Sen is sometimes hard to read on this point. At one moment he asks, behavior patterns vary between different societies (and there is evidence that they do), how can Rawls use the same principles of justice, what he calls the to establish basic institutions in different But, then, Sen turns around to affirm that answering this question, it must be noted that principles for just institutions do not, in general, specify particular, physical institutions, but identify rules that should govern the choice of actual institutions. The choice of actual institutions can, therefore, take as much notice as may be needed of the actual is quite clear in motivating the discussion of institutions in terms of the social structure they promote, nevertheless, through defining his of entirely in institutional terms, Rawls too goes some distinct towards in the Rawlsian system of as institutions are chosen with an eye to results. But once they are chosen through principles of there is no procedure within the system to check whether the institutions are, in fact, generating the Namely, the reasonable citizenry devoted to living by shareable principles who are constantly in the process of deliberatively checking whether the principles they advocate are the best available from the perspective of the three levels of justification. This process includes empirical information about the degree to which institutions can be reformed and revised to generate just results. 156 position is Rawls's own." 180 But, as we saw in the opening characterization of Rawlsian institutional thought, this is not correct. The basic structure is the primary site for discharging obligations of justice not because its design supposes adherence, but because of its 'profound and pervasive' effects on the construction of citizen identity. Rawls treats the basic structure as special precisely because we cannot rely on any spontaneous coordination of desires, talents, and dispositions. We need well-designed structural power for that. This fact alone tells against imagining Rawls as positing a strict separation between institutional design and personal choice. 181Rawls is aware of and intends a co-constitutive relationship between institutions and behavior made clear by the many passages in which he writes about the dispositions of reasonable citizens in a just democratic society. Not only do citizens recognize various natural duties, they are motivated by the preservation of a strong form of social fraternity since they do not desire to have greater advantages unless this is to the benefit of others who are less well off...Members of a family commonly do not wish to gain unless they can do so in ways that further the interests of the rest. Now wanting to act on the difference principle has precisely this consequence. 182 180 Ibid, p.61 181 Sen would do well to revisit Nagel's remark on the historical legacy of Rawls: "Rawl's theory is the latest stage in a long evolution in the content of liberalism that starts from a narrower notion, exemplified by Locke, which focused on personal freedom and political equality. The evolution has been due above all to recognition of the importance of social and economic structures, equally with political and legal institutions, in shaping people's lives and a gradual acceptance of social responsibility for their effects." This quote appears in the above cited "Rawls and Liberalism" in The Cambridge Companion to Rawls. 182 Rawls, Theory of Justice , p.105 157 Indeed, a closer look at the operational definition of the basic structure reveals that institutional design cannot be wholly separate from personal behavior. Rawls tells us explicitly that the rules of the basic structure fall into two categories: (1) Operations designed to preserve the outcome oriented considerations of background justice and (2) Operations designed to regulate interactions such as fraud and theft. 183 These latter features clearly refer to institutional mechanisms aimed at constraining citizen behavior are interactional moral principles (moral division of labor) and that between principles which ensure background justice generally and those that regulate individual economic transactions specifically (institutional division of labor). The notion of division of labor in Rawls, then, does not imply that the basic st ructure "has no bearing" on "actual behavior". Nor does it imply, as Sen thinks, that there is no mechanism to reconsider the empirical behavioral results stemming from institutional selection. Neither does it imply as Cohen imagines that motivation is su pposed to be unaffected by the proper design of the basic structure. A well - ordered basic structure has the aim of "discouraging desires that conflict with the principles of justice." 184 Such structures do so both by preserving the end - states necessary for background justice and by limiting the sorts of behavior that undermines those outcomes. 183 Political Liberalism , p.268 184 Rawls, Theory, p.261 158 Thus, it seems clear that Rawls would not have defended the lax interpretation of the difference principle in the way Cohen suggests. There is at least one alternative way of responding to Cohen by noting that it is possible to adopt the strong interpretation of the difference principle while still insisting that the b asic structure is the primary subject of justice. I agree here with Samuel Scheffler who insists that Rawls could meet where er the term should be the difference principle could not be satisfied by institutional design. Insofar as Cohen is correct to insist that a social ethos is needed over and above the design of institutions in order to implement a strong distributive principle, there is nothing about institutional thinking that prevents us from developing an interactional account of justice. Indeed, Rawls's admission that principles for the basic st ructure require supplementation by an account of appropriate interactional principles explicitly foreshadows the need for such an account. But here it does not appear that own approach is fundamentally distinct from Rawls insofar as both insist th at institutional and interactional principles should be of distinct content. Cohen affirms a variety of prerogatives of personal choice which may provide individuals justified reasons for deviating from the Difference Principle in economic decision making. But if this is the case, the difficulty for Cohen's position is figuring out how to say, once he has granted a set of prerogatives for personal choice, how it is his position entails a 159 conceptually distinct relation between basic structure and personal choice. Admitting a set of prerogatives of personal choice in following the Difference Principle is practically identical to justifying distinct interactional principles altogether Similarly, Sen's chastisement of Rawls as offering an "institutionally fundamentalist view" which neglects the broader, outcome-oriented perspective of social justice is simply misguided. Rawls does not marginalize the importance of actual behavior, but rather exposes its inherent links with the design of institutions. Further, as noted above, Rawls is clear that the design of the basic structure is a 'special case' and must ultimately be linked (and potentially revised) with a broader interactional account of justice. 185 While Rawls may be accused of judging social outcomes wrongly, that is, improperly on the basis of social primary goods (a critique Sen has given and I endorse in chapter 5), he cannot plausibly be accused of neglecting outcomes altogether. Further, he cannot be charged with neglecting empirical data since the four stages of applicability original position, constitutional, legislative, and judicial stages make clear that the application of principles requires knowledge of social conditions including actual behavior. Sen's criticisms of Rawls on this point are forced and fail to grapple with the complexity of the Rawlsian edifice. 186 185 See the section titled "Appropriate Unity of Sequence" Lecture VII of Political Liberalism. 186 Justice For Hedgehogs (Belknap Press of Harvard University, 2011), p.476, footnote 3. Dworkin says: says that his recent book, The Idea of Justice an important from standard theories of justice he cites, among others, John and my own work that are concerned only to describe ideally just institutions and are therefore of no use 160 Concerning the work of Cohen and Sen, then, it seems that upon closer position and their own. Cohen, Sen, and Rawls all agree that institutions must play a special role in guaranteeing basic entitlements and that the sort of burdens shouldered by institutions will not be identical in principle with nor as extensive as the duties charged to individual behavior. That is, all appear to agree that (1) Our primary obligations concern the basic structure and (2) Principles for the design of basic structures are not entirely appropriate as interactional principles. Conclusion Ultimately, what Cohen and Sen miss about the primacy of the basic structure is that Rawls is not attempting to as Liam Murphy once wrongly put it the business of social justice off people's plate." 187 Instead, his point is that interactional principles are by themselves not enough to preserve background justice. However well- designed are interactional principles they must be supplemented by institutional in guiding the comparative judgments we must make in the real and very imperfect world. But two principles of justice are tailor-made for the comparative real-world judgments Sen has in mind. There is, in fact, an astronomically extensive literature of philosophers, political scientists, economists, lawyers, and even politicians applying theories to actual concrete political 187 Liam B. Murphy, "Institutions and the Demands of Justice" in Philosophy and Public Affairs, Vol.27 161 principles with distinct content in order to establish social justice. Without a just basic structure, there is no social justice. 188 Lending primacy to the basic structure is not an attempt to leave individuals entire ly unburdened by the demands of social justice or to leave personal choice aside. It is an attempt to avoid burdening individuals with the impossible task of securing background justice through their own efforts. Institutions are not only better positioned than individuals to gather the sort of complex information required to craft good strategies for securing background justice, they have the power to act on those strategies in ways that distribute more equitably and reasonably the various burdens of our c ollective duties. There is nothing about the institutionalism of political liberalism that would require we be insensitive to empirical results of institutional selection. Even a strictly social contract approach to justice would allow the progressive intr oduction of empirical information during the four stage sequence of application. It is perhaps possible to understand how central the general importance of a reasonable citizenry is to the establishment of political justice. It is free and equal citizens dedicated to living according to shareable principles, who understand the necessity of institutional basic structures in securing effective liberty, and who engage in an ongoing deliberative process aimed at reflective equilibrium and overlapping consensus that are in a position 188 This is why I think the criticism of Sen offered by Steven Esquith is basically correct: Sen is not quite concerned explicitly enough with the design of institutions. See S. Esquith, "Introduction: Institutions and Urgency" in Capabilities, Power, and Institutions edited by Steven L. Esquith and Fred Gifford (Pennsylavania State University Press, 2010). 162 to enact the experimental attitude necessary for finding the delicate balance of democratic arrangements. It is passionate commitment to the reasonable core of political liberalism that can make possible the long and tiresome collective search for justice. 163 Chapter 4 Political Liberalism, Global Justice, and Human Rights If the account in the previous chapter is correct, then basic institutional structures must play a large role in ensuring the entitlements of background justice however effective opportunities are ultimately defined and operationalized. There are collective action problems in securing for individuals fair opportunities which simply cannot be addressed by interactional principles alone. But when we consider justice across basic structures that is, globally a variety of new considerations and potential disanalogies arise. Much attention has been given to whether there is a global basic structure such that entitlements of background justice which bind local basic structures might also extend globally in simple virtue of the interconnectedness they make possible. Kok-Chor Tan 189 , Simon Caney 190 , Charles Beitz 191 , and (the early work of) Thomas Pogge 192 are all examples of writers who argue that there exists a global basic structure such that there are also substantive principles of global justice perhaps even 189 K.Tan, "Toleration and the Global Basic Structure" Paper presented at the annual meeting of the American Political Science Association, Hilton Chicago and the Palmer House Hilton, Chicago, IL, Sep 02, 2004. 190 S.Caney, Global Basic Structure: Its Nature and Moral 191 C.R. Beitz, Global Basic Rights (Oxford University Press, 2009) 192 T.Pogge, Realizing Rawls (Cornell University Press, 1989) 164 the Rawlsian principles of justice themselves which apply equally to all human beings. Others like Samuel Freeman 193 , Thomas Nagel 194 , and Samuel Scheffler 195 have argued that there are no cooperative relationships at the global level remotely analogous to domestic cases. I want to set aside this important question concerning the existence of a global basic structure and with it also the question of what is the most defensible full account of global justice. I approach in this chapter a much more modest question what is the most def ensible minimal account of global justice; one widely shareable by many people in diverse cultures and whose achievement would constitute a basic necessary feature of a globally just society.? In order to do so, I assume the more neutral investigative concept of the global order. I do this not because I think attempts to justify substantive principles of justice grounded in the idea of a global basic structure necessarily fail, but because it is central to political liberal approaches to justice that w e try to see which principles can be justified on more minimal and therefore more widely forms of global interconnectedness operating according to terms of cooperation, but the term itself allows investigators to maintain some degree of agnosticism on hotly contested 193 S. Freeman, John Rawls An in S. Freeman (ed) The Cambridge Companion to Rawls (Cambridge: Cambridge University Press, 2003), especially pps.44 - 51 194 T. Nagel, Problem of Global Philosophy & Public Affairs 33, no. 2 195 S. Scheffler, Equality & Tradition: Questions of Value in Moral and Political Theory (Oxford: Oxford University Press, 2010), Chapter 6. 165 empirical questions about the causal significance of that order. This conceptual choice also makes it possible to set aside questions concerning the precise extent and nature of duties that citizens of domestic basic structures have to their compatriots and how they compare to their duties toward non -citizens. I simply make the not implausible assumption that societies those who share basic structures do have at least some special obligations to prioritize the well-being of their citizens and to secure for them access to basic entitlements. Basic structures ought to be designed in ways that recognize and seize reasonable opportunities to satisfy basic entitlements for all citizens who live under their jurisdictions. But instead of the precise nature of national obligations to their citizens, I focus in this chapter on the moral limits that societies ought to observe in pursuing their domestic agendas, especially the question of what constitutes minimally just global institutions. The primary to pic will be a claim that is widely shared but perhaps not enough considered; that societies have also have universal obligations to respect human rights in constructing terms of global cooperation. We ask what it means to respect human rights today as it pertains to the design of the global order. In this chapter, I address the work of Thomas Pogge on this aspect of global justice, namely, his attempt to understand human rights as negative institutional duties that bind affluent citizens to avoiding the imposition of a global order which is causally implicated in denying human beings secure access to basic entitlements. There is much to agree with in argument, including his emphasis on understanding human 166 rights as institutional duti es and especially his critique of explanatory nationalism, but I will advance a line of argument that at least invites Pogge to clarify how he understands social responsibility as it pertains to basic structures and national governments. I emphasize what I take to be at least a change of accent concerning how we ought to understand national responsibility in the global order and, in particular, what it means for the global order to violate a negative institutional duty to respect human rights. I presume it uncontroversial to say that we do not have and, if possible to avoid, do not want a global state. There currently exists a multitude of basic structures, multilateral agreements, and global organizations which hang together as a single scheme of power. I a rgue that this global order violates negative duties to respect basic entitlements (and therefore human rights) only if it deprives societies (citizens and their governments) of the reasonable opportunity to discharge national responsibilities to protect those basic entitlements. 196 I intend to explain the upshot of this conceptual shift about global justice and human rights. We can now anticipate those results: 196 I emphasize from the outside that I use the phrase reasonable opportunity to refer to an unspecified level of effective opportunity that could become the object of overlapping consensus between those who recognize the burdens of judgment but are nonetheless committed to cooperating on terms shareable by all. In this sense, I use the term reasonable opportunity in a way that may be compatible with fair opportunity, formal equality of opportunity, or fair equality of opportunity. I remain non - committal in this chapter on how to specify reasonable opportunity. 167 (1)The interpretation of human rights and the global order as centering on reasonable opportunities to discharge social or domestic responsibility directs attention to the particular empirical causal relationships which hold between the global order and specific basic structures. We affirm that where the present global order violates human rights it does not do so in general nor in a uniform way. The violation of human rights occurs in particular cases where nations are deprived of reasonable opportunities to provide for citizens secure access to basic entitlements. A just order requires that human beings place special emphasis on these social entitlements. (2)The imposition of a global order that predictably and avoidably deprives societies and their governments of reasonable opportunity to protect citizens binds the major players of global policy to especially stringent remedial obligations over and above those cases where societies have not been deprived of such opportunities. The present analysis provides a conceptual basis that explains the special stringency of this smaller subset of obligations. Understanding human rights as centered on social opportunity is especially important both because we want to distinguish obligations that are especially weighty since global justice requires that members of a society be willing to expend considerable resources to meet these burdens and because our analysis should respect societies as collective projects of freedom in a world of reasonable pluralism. Accounts of global justice should not build into themselves the patent condescension implied by conceiving any society as an inert or passive victim of external forces where there exist fair and effective global conditions for the genuine expression of sovereignty. 168 (3)The emphasis on social opportunity on the local, basic structural site of justice inthe present formulation of human rights may help to gain wider acceptance for the account of global justice Pogge has pioneered. This is because an emphasis on social opportunity deplores explanatory nationalism while nonetheless bringing Pogge much closer to thinkers like David Miller who emphasize national responsibility. 197 Thus, these remarks should be taken in the spirit of moving two otherwise disparate accounts a bit closer to one another in ways potentially acceptable to either side. (4)Finally, the present analysis suggests that a global order which respects human rights understood as negative institutional duties may not be sufficient to eradicate severe global deprivation. If we are interested in achieving a world where basic entitlements to justice are satisfied for all, then we need to redirect our energy toward understanding that remedial responsibility for global poverty must go beyond political liberal accounts of human rights. A world that succeeds in the eradication of basic deprivation will likely include widespread commitment not only to the negative duty to guarantee social opportunity but also to the positive duty of distant strangers to pick up the slack where governments fail to seize the opportunities created by the global order. 197 D.Miller, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007), see especially pps. 238-247 for analysis quite compatible with the one found in this chapter. After a very brief consideration of work, Miller rightly concludes: question we should be asking about the global order, then, is whether it provides reasonable opportunities for societies to lift themselves out of poverty, or whether it places obstacles intheir path that are quite difficulty to overcome, requiring an extraordinary economic performance on the part of (p.241) 169 Before I move to the argument, a few remarks about John Rawls are in order. The approach I pursue in this chapter is clearly a departure from the Rawlsian approach to international relations exemplified by Law of Peoples . There will, for example, be no talk of a two-stage application of the constructivist apparatus. Neither do I ask which view of global justice follows most consistently from the Rawlsian domestic view of justice. international justice to be among the weakest elements of his corpus. 198 In another important sense, however, the basic elements in the minimalist approach to human rights both Pogge and I share can be understood as an application of the Rawlsian political liberal procedure to the question of global justice. In particular, there are four elements of human rights that both Pogge and I endorse which I take to be in accord with Rawlsian political liberalism: Human rights are institutional in the sense that they are rights toinstitutions which guarantee secure access to basic entitlements. Human rights are not in the first instance interactional rights against other specific individuals. They refer primarily to major socio-economic institutions and only secondarily to the human agents who uphold those institutions. Human rights should be justified by seeking an account that reasonable people may come to share, independent of deep metaphysical and religious 198 For a good case about why this is so, see M. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Harvard University Press, 2006), especially pps. 224-270 170 commitment. Human rights are not natural rights. They are rights whose justification must ultimately derive from their ability to serve as a reasonable basis for domestic and global interaction even under conditions of metaphysical and philosophical pluralism. Human rights concern basic entitlements and are, therefore, concerned with those goods which are widely agreed to be most important for human flourishing. I postpone my account of how to understand the specific goods which underlie these entitlements until the final chapter. Human rights are negative rather than positive rights. Human rights give to individuals the right not to be subjected to an institutional order global or domestic which predictably and avoidably creates insecure access to basic entitlements. These four criteria provide a basis for justifying why it is that we should take human rights very seriously and why these rights impose potentially burdensome universal duties of justice. The gentle disagreement with Pogge concerns neither the moral impor tance of ending severe deprivation nor the general recognition that nations participating in the construction of the global order may violate human rights. Rather, the disagreement concerns how to understand, divvy up, and weight various responsibilities f or ending severe deprivation in a globalized world. One more note on the political liberal spirit of the proposal: The conception of institutional human rights as respect for social or domestic opportunity on offer here is 171 not merely a minimalist conception of global justice; it is contains a certain measure of formulation remain merely formal and therefore open to diverse specification i.e. both the notions of reasonable opportunity and basic entitlements as they pertain to social responsibilities may be defined in diverse ways depending on what is needed in a given situation. This ambiguity is an important strength not a weakness. A more substantive account of such opportunities and the basic entitlements for which governments are responsible can be provided as needed, if not by philosophy then by democratic processes, though I say little about either prospect in this chapter. I do, however, provide a more precise account of basic entitlements as human capabilities in the final chapter of this volume. I leave aside for later work precisely what constitutes a reasonable opportunity to discharge for a basic structure to discharge the societal responsibility to protect basic entitlements and whether there are in some cases societies where citizens who are severely deprived do in fact have reasonable opportunities to avoid deprivation. The hope, then, is that a reformulation of what it means for the global order to respect the negative institutional duty to avoid harm will direct us to focus on these empirical and philosophical difficulties in a shared pursuit of global justice. Causal Factors of Societal Wealth and Poverty Since the 2002 publication of World Poverty and Human Rights , Thomas Pogge has been arguing that rich nations are involved in the largest active violation of human 172 rights in the history of the world as a result of their participation in constructing and imposing a global order of norms that predictably and avoidably deprive citizens of basic entitlements. 199 The most basic and important contribution of his work has been to broaden our understanding of forms of causation which impact the design and operation of basic institutional structures. He challenges any assumption that events which happen within a domestic jurisdiction must arise from causal factors located within that locale. He combats what in my own political experience happens too often, namely, hearing someone mistakenly explain extreme poverty like this: problem is commonly the nature of the public political culture and the religious and philosophical in 200 But, as 201 Though it is clearly true that elite corruption is a crucial proximate cause of poverty from those who engage in tax avoidance to officials who implement pro-rich domestic economic policies to the brutal thugs who engage in the armed repression of their citizens we must also question the causal factors that give rise in the first place to this domestic causal factors cannot be understood independent of the web of causation. 199 T.Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Polity Press, 2002) 200 J.Rawls, Law of Peoples , p.77 201 Pogge, World Poverty and Human Rights, see footnote 238 173 The debate about which causal factors operate to create social wealth and poverty is ongoing and highly contentious. We can separate these factors into three general types: Physical and Geographical Factors , including availability of resources, climate, average rainfall, soil fertility, availability of rivers, presence of natural ports, and frequency of mountainous regi ons. Local or Domestic Factors , including cultural factors such as dominant religious and political orientations, sound banking system, competitive markets, degree of community cooperation and social capital, technological capacities, degrees of innovation, and fertility rates. External factors including histories of colonialism and imperialism, geopolitics, terms of trade cooperation, patterns of foreign investment, activities of multinational corporations, foreign environmental impacts and po llution, debt relations, and the design of global institutions such as the IMF or World Bank. Thinkers like Jarred Diamond 202 emphasize physical and geographical factors, economists like Jeffrey Sachs, Paul Collier, or David Landes 203 emphasis domestic 202 J. Diamond, Guns, Germs and Steel 174 factors, while there is a growing group like Joseph Stiglitz or Thomas Pogge who emphasize external factors. 204 To get a better sense of how external causal factors operate, they can be further separated into two kinds according to distinct functions those which erect direct barriers to the national achievement of wealth and those which create indirect incentive structures that significantly constitute the quality and motivations of national leadership. 205 Direct external barriers to wealth include war and military invasion by other countries, tariffs imposed on exports to prevent the competitiveness of national products in foreign markets, subsidies provided by foreign governments to their producers so that they may artificially enhance the competitiveness of their own products, terms of debt repayment, WTO restrictions on environmental protections, IMF structural adjustments, and so on. On the other hand, the range of indirect external constitutive factors includes those incentive structures erected by the global order which directly affect who takes and maintains power within a country. Pogge has argued, for example, that the resource privilege the norm of trade which allows multinational corporations to purchase resources from dictators provides destructive economic motivation for groups to forcibly take control of national governments because they 203 J.Sachs, The End of Poverty: Economic Possibilities for Our Time (Penguin Books, 2005); P. Collier, The Bottom Billion: Why the Poorest Countries Are Failing and What Can Be Done About It (Oxford: Oxford University Press, 2008); D. Landes, The Wealth and Poverty of Nations (Little, Brown, 1998) 204 J.Stiglitz, Making Globalization Work (Norton & Company, 2006); T. Pogge, World Poverty and Human Rights 205 I take this language of direct and indirect external causal factors from reply to his critics in T. Pogge, to the in A. Jaggar (ed) Thomas Pogge and His Critics (Polity Press, 2010) 175 know that the global order will allow them high levels of profit by selling whatever national resources they seize during their coup. Similarly, global norms surrounding the sale of weapons i.e. corporations are permitted to arm unaccountable and antidemocratic regimes often enable corrupt elites to maintain control over populations by using foreign - bought weapons to repress legitimate resistance. In its weak form, then, the most cruc ial politico - philosophical contribution of Pogge one with which I totally agree globalized world events cannot be explained by physical and domestic factors alone. Global institutions erect both direct barriers and indirect c onstitutive obstacles which potentially frustrate the abilities of nations to create institutional environments that protect basic entitlements for citizens. We should reject as patently false any doctrine which appeals simply to domestic and physical fact ors to explain poverty i.e. what Pogge calls explanatory nationalism and redirect research toward the causal linkages that hold between global institutions and domestic basic structures. His success would disrupt the often smug and insulated assurance of some who believe rich nations have no causal relation to poverty abroad. But Pogge goes beyond this weak (and perhaps obviously true) empirical claim. 206 In order to say that rich countries and their citizens are involved in the largest ongoing human right s violation in human history, he must also defend the much stronger claim 206 Josh Cohen has called this weaker and point Conventional Thesis. See J. Cohen, Social Science, and Global in Pogge and His Critics, 26 - 7. 176 that the design of the global order is in fact causing injustice not merely failing to prevent those deprivations characterized as basic. 207 In general, there are two aspects of this stronger claim about human rights and the global orde r: (1) The empirical question concerning the nature of the causal links that do in fact exist between the global order and specific deprivations and (2) The normative question of which causal links constitute in principle a violation of the negative instit utional duty to harm. Concerning the first empirical aspect of the problem, Pogge is committed to the following claim: I believe that most of this death toll [50,000 daily poverty - related deaths] and much of the larger poverty problem it epitomizes are avoidable through comparatively minor modifications in the global order that would entail only slight reductions in the incomes of the affluent. 208 This conclusion has been highly contested and has been the object of scorn by a number of scholars. Joshua Cohen, whose important article on Pogge was cited above, has suffice holding domestic institutions fixed, and no reason to think that they will suffice by changing incentives and opportunities in ways that induce the right (that is, poverty - 209 There is no doubt some tension between claim that the dominance of explanatory nationalist attitudes creates a 207 World Poverty and Human Rights 208 T. Pogge, Politics as Usual: What Lies Behind the Pro - Poor Rhetoric (Polity, 2010), p.31 209 Cohen, Social Science, and Global p.21 177 dearth of research on global causal relations and his claim to know that most poverty could be avoided by minor changes to global institutions. If the former claim holds, the latter claim seems to be necessarily without full justificatory support since there would be no available research to establish the causal linkages Pogge affirms. 210 But let us set aside for the moment the empirical question concerning which of the three sets of factors are controlling in the creation of severe poverty and ask instead when it is that external factors in principle disrespect human rights by violating the negative duty to avoid harm. This question is an upstream philosophical question in the sense that it addresses what is meant by a human right and, in particular for our purposes, what is meant by one society causing institutional harm to citizens of another society. These inquiries cannot be settled by social scientific investigation alone since there is an inescapable normative element in affirming which causal relations are morally undesirable. I will not be here concerned with defending the general position Pogge and I share concerning why it is that human rights are best understood in institutional rather than interactional terms. Those unfamiliar with that argume nt can 210 Nonetheless, Pogge does not back away from this thesis. In his response to Cohen, he mobilizes a number of phenomenon, including the fact that share of the bottom 40% of humankind has been reduced to below 2% of global household that the preponderance of evidence supports his own empirical thesis. Further, he claims, in the world as it is, the proper response to our epistemically imperfect situation is not to withhold judgement on the Strong Thesis until a more conclusive case can be made for it. Rather, if it can be shown that the preponderance of evidence favors the thesis, the proper response of conscientious citizens of wealthy countries would be to act as if it were true; for the consequences of underestimating the harm we do the global poor are far graver for them than the consequences of overestimation would be for to the p.182 178 find clear versions of it in the following places. 211 general characterization of a human right is correct and is supported by the argument I gave in a human right to X [where X is a basic good] is tantamount to the demand that, insofar as reasonably possible, any coercive social institutions be so designed that all human beings affected by them have secure access to 212 It is sufficient for now to note that this postulate is ambiguous as to which institutions domestic or global incur what kinds of responsibility for securing access to basic entitlements. It says only that the institutional scheme under which human beings live a scheme which includes both domestic basic structures and the global order ought to provide secure access to basic entitlements. So, on this view, a minimal feature of justice is that individuals are entitled to live under an institutional scheme in which they can reasonably expect to satisfy basic entitlements. A negative duty is violated and hence a human right is violated when others impose institutions that impede secure access to basic entitlements. But again, and here is where my disagreement with Pogge will emerge, what has been said thus far is ambiguous as to the distribution of responsibility for this institutional environment between domestic and global institutions. 211 T.Pogge, World Poverty and Human Rights , Chapters 1-3 212 T.Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Cambridge: Polity, 2002), p.46 179 Since we are focused on causing harm , we should first stage a bit of general preparatory conceptual work about the concept of causation . Causal claims are various in kind, often vague and sometimes self-contradictory, so there is a need to introduce some precision. We need not follow those few philosophers who continue the attempt to offer a uniquely true account of causation, since our aim here is much more modest. I want simply to clarify different senses of causation that will allow a clearer understanding of when global institutions disrespect human rights by violating in n be supported in several ways: The causal necessity of Feature X : We gather evidence to show that in all relevantly similar situations, the poverty in A does not occur without the occurrence of X. ( Feature X)The causal sufficiency of Feature X : We gather evidence to show that inall situations where X occurs, the poverty in A also occurs. Note that in these cases, poverty in A is unavoidable given the occurrence of X. ) Though both necessity and sufficiency are primary considerations in establishing the existence of causal relations, there are also other less prominent concerns: Logical independence of Terms. The antecedent and consequent terms in a statement of material implication must be logically independent in180 and fighting caused under consideration, Feature X of the global order is logically independent of Poverty A. Temporal priority of antecedent terms. We normally say that causes are temporally prior to their effects. In this case, Feature X would have to have been instantiated prior to the existence of Poverty A in order to be count as a cause of A. Claims of cau sation often appeal to one or more of these forms of evidence roughly in descending order of epistemic force. But, when we ask about the causes of any human deprivation for purposes of moral assessment, establishing that some factor X is necessary or suffi cient for that deprivation is not by itself enough to show that X or its perpetuating behavior is a harmful violation of a negative duty. In order to be actively harmful in a morally irresponsible sense and, more precisely, in order to establish that some specific actor has disrespected human rights by violating the negative institutional duty to avoid harm the causal factor in question must meet additional moral criteria. The classical philosophical method of discerning these criteria is to examine a range of cases in which there is widespread agreement that harm has occurred and then to discern the general features of situations which allow us to affirm this conclusion. In this way, we arrive at a general characterization of harm which can be applied to controversial cases such as the operation of the global order. 181 It is clear that not all causal contributions to a given deprivation constitute harm in a moral sense which might count as a violation of a negative duty. In the first place, in order for the cause of a deprivation to be morally irresponsible harm it must be perpetuated by an agent or agents capable of doing otherwise than they did. We do not count natural disasters like earthquakes and tsunamis as harmful violations of negative duties despite their catastrophic results, insofar as their effects on life quality do not arise from human action. 213 Similarly, we do not say that exhaling carbon dioxide is a violation of negative duties to respect human rights even if it turns out that breathing is casually connected to basic deprivations related to climate change. The reason we do not call these causal factors morally harmful is because it is not immediately obvious how the agents could be expected to reasonably do otherwise. By imposing the the cases suggest that the first condition of morally irresponsible harm, th en, is that causal contributions must be perpetuated by human agents who can or could have been reasonably expected to do other than what they did. Causal factors which do not meet these minimal criteria cannot be said to be harmful in the morally relevant sense under discussion. 213 Of course, insofar as natural disasters cooperate with human choices to cause deprivation e.g. with poor building codes, lack of medical preparation, or low investment in warning systems we may rightly say that the actual toll of deprivation resulting after natural disasters is immoral. See, for example, http://www.worldwatch.org/human - actions - worsen - natural - disasters 182 So, apropos our discussion of global institutional justice and human rights, harmful institutions are those perpetuated by agents who could have done otherwise could have made other, better institutional choices than the ones they actually made. Closely related to this condition of avoidability, institutional harm must also be predictable. Genuine harm is never a fluke. Rather, it is an outcome whose high probability can be foreseen by reasonably attentive observers . Fairly uncontro versial examples of predictable and avoidable institutional harm include British colonial institutions and their killing of more than a million people in the Irish Potato Famine of 1846 - 9 214 ich led to massive famine. 215 More recently and more controversially, Pogge has argued that - competing exporters from other poor countries, thereby lowering export prices, along with wages and labor standards, 216 Taken together, the considerations of the previous two paragraphs suggest that genuine violations of negative institutional duties meet at least three minimum conditions: such violations refer to institution al features which make predictable and avoidable causal contributions to creating environments where people have insecure access to basic goods. 214 T. Pogge, Poverty as a Human Rights in Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (Oxford: Oxford University Press, 2007), p.52 215 T. Pogge, - Poor Rhetoric? (Cambridge: Polity, 2010) 216 T. Pogge, Politics as Usual , p.103 217 Po g g e , P o l i t i c s a s Us u a l , p . 31 183 The Moral Relevance of National Opportunity to Avoid Harm Pogge and I agree to this point, but here we begin to diverge. He argues that these conditions I have outlined the creation of institutions which operate as predictable and avoidable necessary or sufficient conditions in a causal chain which produces systematically insecure access to basic entitlements are themselves sufficient to constitute the violation of negative institutional duties: institutional order and its imposition are human - rights - violating if and insofar as this order foreseeably gives rise 217 But we should carefully distinguish between relations of causation in which the global order acts as a sufficient condition for basic deprivation (Feat Basic Deprivation) and the majority or perhaps entirety of more difficult case in which the global order operates as mere necessary condition in conjunction with regional or national institutions in the production of deprivation (Ba sic Deprivation Feature X of Global Order). Of course, if there were cases where some feature of the global order was predictably and avoidably sufficient to cause basic deprivation, then there would be no question that this institutional feature would c onstitute a violation of negative institutional duties to respect human rights. But institutional moral assessments get significantly more difficult in normal cases where external factors created by the global 218 Pogge, Politics as Usual, p.45 184 order are merely necessary but not causally sufficient factors operating in conjunction with physical and domestic factors to create conditions for severe deprivation. Pogge does not in general deny that existing deprivation is the result of synergies between external, domestic, and physical causal factors nor that many existing deprivations could be sufficiently avoided with changes in domestic true as the defenders of affluent countries and of their present globalization project point out that most poverty would be avoided, despite the current unfair global order, if the national government and elites of the poor countries were genuinely committed to 218 But where the global institutional factors in question are not sufficient to cause basic deprivation, the national responsibility of each nation to protect the basic entitlements of their citizens by erecting an adequate domestic institutional structure becomes increasingly morally relevant. Indeed, it is not at all clear why Pogge does not insist that nations are primarily responsible for deprivations within their borders where those nations have reasonable or fair opportunity to implement policies which remove or alter domestic factors necessary for that deprivation. The extent of the opportunity national governments have to protect the basic entitlements of citizens seems prima facie to be the central issue when assessing whether the global institutional order violates negative duties to respect human rights. Let us see how this is so. 219 Pogge, Politics as Usual, p.23 185 First, Pogge does not deny the assumption I voiced at the outset, namely, that national is not required to give equal weight to the interests of all human beings worldwide. Rather, it is permitted to be partial by showing special concern for the interests of its own people, present, and future. But there are obvious ethical limits to a partial in favor of their own group must, as a condition of the permissibility of such partiality, also be impartially concerned for preserving the 219 that national governments are responsible for seizing reasonable opportunities to protect the national governments to show for their citizens can only be characterized as the concern to seize whatever reasonable opportunities are available to protect human rights while respecting the opportunities of other nations to do the same by creating societies where citizens possess secure access to basic goods. This consideration by itself gives good reason to believe that the justice of the global order will hinge in large part on the quality of whatever opportunities this order makes available to national governments to discharge their special obligations to their citizens. Second, Pogge does not deny that the global order even in its present clearly unjust form in fact provides qualitatively various opportunities for nations to discharge their national responsibilities to citizens. The very fact that some nations 186 have been very successful seizing opportunities provided within the global order to eradicate poverty is sufficient to show that the global order does not entirely foreclose all national opportunities for poverty eradication. 220 Of course, Pogge is absolutely correct to emphasize that the success of some nations does not show that all nations have the opportunity for simil to certain cases create effective opportunities for the discharge of national responsibility and that some national go vernments sometimes fail to seize these opportunities. This much is entailed by his admission quoted above avoided, despite the current unfair global order, if the national government and elites of the poor countries were It is not clear on first inspection, then, why basic deprivations arising from a confluence of global and local institutional conditions, despite genuinely reasonable national opportunities to prevent those deprivations, would be counted as evidence that the global order violates human rights. If Pogge believes that (1) national governments have special obligations for guaranteeing basic entitlements of justice to their citizens, and (2) the global order provides at least some national opportunities sufficient for discharging these special obligations, then how can he proclaim that the global order harms the poor even in cases 220 For an overview of low - income nations which have done much to increase economic growth and eradicate poverty see J. Sachs, The End of Poverty , pps.66 - 73 187 where it has created a reasonable opportunity to discharge national responsibility? Pogge could of course insist that though the global order creates opportunities for the discharge of national responsibility, it provides no reasonable national opportunities to do so. But no matter how we define reasonable national opportunity, this position would seem to be implausible to hold concerning every nation in which basic deprivation exists. It would seem, then given embrace of (1) and (2) there is at least prima facie reason for him to say that where the global order creates reasonable opportunities to discharge national responsibilities it has satisfied negative duties to avoid institutional harm. This is true even where observers can predict that certain nations may fail to seize opportunities made available or left unaffect ed by the global order to guarantee secure access to basic goods for their citizens. In an attempt to anticipate and respond to such critiques, Pogge asks us to imagine the following line of reasoning: Suppose the two sets of relevant causal factors the global institutional order and the economic regimes and policies of the countries in which severe poverty persists were symmetrically related so that each set of factors is necessary for the current reproduction of severe poverty worldwide. Then, if we insist that the global factors must be absolved on the ground that modification of national factors would suffice to eradicate world poverty, defenders of national factors could insist, symmetrically, that these national factors must be absolved on the ground that modification of global factors would suffice to eradicate world poverty. Acquitting both sets of factors on these grounds, we would place their cooperative production of huge harms beyond moral criticism. Pogge goes on to offer a simpler but supposedly analogous interactional case to show the intuitively implausibility of this assessment: 188 Suppose two upstream tribes release pollutants into a river on which people downstream depend for their survival. And suppose that each of the pollutants causes only minor harm, but that, when mixed, they react to form a lethal poison that kills many people downstream. In this case, both upstream tribes could deny responsibility, each insisting that the severe harm would not exist if the other upstream tribe stopped its polluting activity. Acceding to this denial would be absurd, as neither tribe would then have an appropriately strong moral reason to alter its practice. 221 We should note that Pogge is absolutely correct that in our global order we must learn to understand responsibility for synergistic harm, or harm that is produced by multiple cooperating necessary, but each by itself insufficient causal factors. He is also right to say that remedial responsibility for synergistic harm can not be left these grounds [that neither is sufficient to cause harm], we would place their cooperative 222 The problem here, howeve r, is both sets of factors. Pogge has already granted that national governments have a special national responsibility to protect the basic entitlements of their citizens. Accordingly, if the domestic policies of a national government are necessary causal contributors along with global factors in creating conditions sufficient for synergistic harm to their own citizens, then the assignment of primary responsibility falls to the national government when that government has the reasonable opportunity to avoid its own necessary causal contribution. In these 221 For both passages see Pogge, Politics as Usual , p. 44 - 5. Pay special attention to claim that persistence of severe poverty worldwide is analogous to the harms suffered by the people (45) 222 Pogge, Politics as Usual , p. 44 189 passages, Pogge forget his previous assertion that national governments have primary responsibility to design basic structures in ways that ensure the basic entitlements of citizens wherever they have reasonable opportunities to do so. symmetrically, that these national factors must be absolved on the ground that modifica tion of global only on condition that these defenders also deny that national governments have special or asymmetrical obligations to protect their citizens from poverty. In the absence of such a n implausible denial, one which Pogge in any case does not endorse, we do in fact have a clear way to assign primary responsibility . To say that national governments have special obligations to their citizens is precisely to say that when leaders have opportunities to guarantee basic entitlements of justice for their citizens, then they have special reasons to seize those opportunities in a way that others, including designers of the global order, do not. There is no need, then, for Pogge to fear the du al acquittal of both primary sets of necessary causal factors which together form sufficient conditions for synergistic harm. By his own lights, national governments have special duties to withdrawal their own necessary contributions to synergistic harm wh ere it is reasonable to do so. The negative institutional duty of the global order is to avoid depriving national governments of the reasonable opportunity to discharge their special responsibilities. The basic disanalogy between the first and second case, then, is that in the second case it is not clear who has what responsibilities. Does the tribe downstream 190 have a national government who has special obligations to protect its people from deprivation? If so, does the national government hav e a reasonable opportunity to prevent the harm from upstream pollutants? The synergistic harm of the two upstream tribes becomes a violation of negative duties only on condition that their actions have created a situation in which they have foreseeably and avoidably deprived those charged with primary responsibility for protecting the entitlements of downstream tribes of a reasonable opportunity to do so. It is easy to tell who has primary responsibility in the first case, but not in the second case. Thus, the analogy is misleading since the two cases differ at least along this crucial dimension. I am suggesting that institutional harm must take into account a very elementary consideration which operates at the interactional level. The most clear cut cases o f interactional harm are those in which the causal chain between the harmful action and the resulting harm is short and provides little reasonable opportunity for the victim to avoid the harm in question. A punch, a gunshot, or a car crash are unproblematic interactional harms and recognized as such in legal settings in large part because the agent deprives another of the ability to avoid that harm. But the longer the causal chain between action and effect, the less certain we are that the offen ding action constitutes harm. Let us imagine that, say, the sale of cigarettes to a smoker, which we assume in But though this consequence is predictable (sellers know that selling cigarettes to smokers will likely be causally related to their deaths) and avoidable (sellers could refuse to sell 191 cigarettes), we would not count this as harm insofar as buyers have the reasonable opportunity to avoid the harm in question. The opportunity to avoid harm becomes more reasonable as: Buyers can be expected to anticipate the harm of smoking, say because there are warning labels on the products and public service announcements warn smokers of the risks. The cost of quitting smoking is not unreasonable; e.g. cessation isnot made impossible by addictive additives or the smoker will not lose his or her employment as a result of quitting. There are feasible ways of avoiding the harm; e.g. cessation services. As the smoker gains a reasonable opportunity to avoid the harm by buying cigarettes under full information of their likely effects and with the meaningful option to do otherwise without unreasonable cost, the responsibility of the seller thought the seller has undertaken an action that will predictably and avoidably lead to death diminishes. Our notion of harmful global institutions must take into account a similar intuition. As the global order leaves an increasing range of options for nations to deploy basic structural designs which guarantee basic entitlements, the global order becomes less responsible for harms which result even from causal chains in which its own features are necessary conditions. 192 It is difficult to imagine how Pogge might respond to the present analysis given his strong endorsement of national responsibility, but let us consider a potential objection. One way Pogge might defend his account is by claiming that my attempt to introduce a proviso which absolves the global order of responsibility for violating negative duties when national governments have reasonable opportunity to ensure basic entitlements is already included in his own definition of negative institutional duties. This is because, he might claim, in order for a basic deprivation to be a predictable result of an institutional feature, we must ask how and whether that institutional feature affects national opportunities to provide for their citizens. If an institutional feature did not significantly compromise the ability of a nation to satisfy basic entitlements, we may not be in a position to predict a deprivation of basic entitlements. It follows, according to this possible reply, that where the global order has not deprived a national government of a reasonable opportunity to ensure basic entitlements for its citizens, there will be no predictable deprivation and, therefore, no violation of a negative duty. So, to say that harm is a predictable result of the global order is already to say that a nation has been deprived of a reasonable opportunity to avoid that harm. The problem with this reply is not simply that Pogge has already admitted that most governments do in fact have the ability to negate the negative impact of external and physical causal conditions of basic deprivation, but, more importantly, the reply neglects the fact that it is still possible at least in principle to predict deprivation even where nations do seem to have reasonable opportunity to avoid basic deprivations. That 193 is, a human deprivation may be a predictable and avoidable result of a causal chain in which the global order is a necessary condition, even as the primarily responsible national government in fact has a reasonable opportunity to meet its obligations. Many of the most egregious deprivations for example, populations living below $1 per day or without access to clean water could in many nations be addressed with changes in either domestic or global institutions. The mere awareness that a national government has but is unlikely to seize opportunity to rectify basic deprivations in the lives of citizens , and hence the mere predictability of that deprivation from the perspective of global policy makers, is not sufficient to ground a negative obligation to craft policy to avoid that deprivation even where reasonably possible to do so. Nor may we plausibly accuse global policy makers of human rights abuses simply because they did not undertake to prevent deprivations which national governments and their citizens may be plausibly expected themselves to prevent. Global Justice and the Responsibility of Developing Countries global justice implicitly supposes (in a perhaps - in poor countries are to be passive observers of a global order in which most of the heavy lifting is assigned to Western governments and their citizens: Are we who live and work in the developing world, fated t o remain consumers of acts, whether these are acts of harm or of duty, performed by the West? Do 194 those of us who live in India have any kind of duty towards the poor in other countries? And if we do not, do we lack status as moral beings who count? 223 out national responsibility for basic entitlements and its relation to global institutions. The clear advantage of emphasizing national responsibility is that those in poor countries are explicitly conceived of as active and responsible agents who are to held to demands of justice where there exists reasonable opportunities for just action. In his reply to Chandhoke, Pogge emphasizes that his view is not subject to West-centric thinking: By addressing affluent people everywhere, WPHR gives no support to the viewpopular among poor country elites that underdevelopment is the responsibility and task of the wealthy countries alone. Affluent citizens in poor countries should think about their own responsibilities to use what powers they have within imperfect political processes to achieve a more just society. global poor should also play a role in the realization of their human rights, but their capacity to do so is severely diminished by the harms inflicted on them. This is why I have been working on a number of institutional reforms which could empower them. 224 of argumentation I have been advancing. Pogge conceives nations as responsible for achieving justice in their societies where they have a fair or reasonable opportunity to exercise that responsibility. This expectation extends even to the global poor themselves 223 N.Chandhoke, Much Is Enough, Mr. Thomas? How Much Will Ever Be in Thomas Pogge andHis Critics (Polity Press, 2010), p.80 224 Pogge, Responses to the Critics , p.209 195 where opportunity has not been diminished in some unreasonable way by the global order. But Pogge cannot have it both ways. He cannot both treat developing countries as active and responsible where they retain opportunities to discharge their responsibilities and simultaneously affirm that western citize ns are guilty of human rights abuses in virtue of their participation in the construction of a global order wherever and whenever there exists a predictable deprivation that could be avoided by modifying the global order. Even should his empirical thesis w hat Cohen calls his turn out to be correct that one half of all poverty - related deaths (about 9 million out of 18 million poverty - related human deaths annually) could be avoided with minor modifications in global institutions, this would not be sufficient to show that western citizens are guilty of 9 million annual human rights abuses largest here would concern, rather, citizens for whom the global order depr ived their nations of reasonable opportunity to provide basic entitlements. Western governments do plenty deprived of reasonable opportunity to pursue national projects, it is not coherent to accuse foreign governments of violating negative institutional duties. The above considerations suggest that the predictability and avoidability of basic deprivations in which the global order is causally implicated are not sufficient to establish global institutional disrespect of human rights. I suggest that we should 196 conceive violations of negative institutional duties to avoid harm as the predictable and avoidable deprivation of reasonable social opportunities to protect the basic entitlements of their citizens. Rather than conceiving the global order as violating human rights whenever it is causally implicated in some predictable and avoidable deprivation, we should reserve the weighty language of human rights for those features of the global order which deprive nations of morally significant national opportunity. Not only is this normatively correct as I have laid it out here but its even handed consideration of social responsibility avoids the petty condescension inherent in believing that global justice is solely the business of western elites and takes seriously the need to create institutional space for all societies to actively participate in their futures. The crucial tasks for moving toward a world of global justice, then, concern understanding in more detail what we mean by reasonable national opportunity and basic entitlements, developing morally plausible indications and indices which measure when national opportunity exists, and exploring carefully how certain features of the global order facilitate and impede national opportunity. I turn now to a brief sketch of some crucial factors involved in this last task using intuitive notions of opportunity and entitlement. But before I do, let me clarify a potential point misunderstanding: Am I saying, then, that the global order and foreign nations have no duties to assist poor nations beyond the negative institutional duty to respect social opportunity? I absolutely do not believe this is the case. I believe other nations and designers of the global order 197 have moral obligations to the poor even where human rights that is, negative institutional forms of respect for reasonable social opportunities have not been violated by external causal factors. But how stringent these positive obligations are and how much distant others can be expected to sacrifice in their fulfillment are difficult questions. Certainly such duties should not be conceived as stringently as are our obligations to respect institutional human rights. Nonetheless, recognition that not all predictable and avoidable deprivations in which external factors are causally implicated are necessarily violations of human rights frees up the recognition that we mu st return to serious investigation of and strategies for a more widespread recognition of our positive duties to distant others. It is implausible to believe that we can categorize the totality of remedial responsibility necessary to end severe deprivation under the banner of respecting human rights and negative global institutional duties. The emphasis that societies themselves are primarily responsible for seizing reasonable opportunities to protect the basic entitlements of citizens undercuts any general claim that the present global order is violating human rights wherever there exists predictable and avoidable deprivations. But to do otherwise not only fails to treat (certain) nations as responsible entities, but also treats certain other nations as hyp er - responsible for every deprivation in which the global order is predictably and avoidably causally connected. Nonetheless, even where more 198 balanced conception of human rights, there is much to do in our global world in order to secure reasonable national opportunities to end basic-entitlement deprivation. Hypotheses Concerning Current Global Institutional Violations of Human Rights Though I have offered neither a substantive conception of basic entitlement nor reasonable national opportunity, and though part of the central point of my reformulation of human rights and global justice is to refocus attention to the need for precise empirical research about national opportunity, it is nonetheless already possible to gesture toward a handful of features of our global order that likely constitute significant causal factors which unreasonably compromise the opportunities of certain societies to protect basic goods for citizens. There are a number of areas where the global order may compromise the reasonable opportunities of nations to satisfy background justice for their citizens and may, thereby, be violating human rights. These areas include environmental impact, the behavior of multinational companies, trade policy, and international debt relations. I would like to end this chapter by saying a things about the final two (a) trade and (b) debt. There is reason to hypothesize that the global order as it currently exists in these areas in many cases significantly burdens national opportunity to protect basic entitlements. (a) Perhaps the first thing to do concerning trade policy is to say what the present reformulation of institutional human rights around the concept of national opportunity 199 global order which allows unaccountable dictators to fill their coffers by selling national resources compromises the reasonable opportuniti es of certain nations to secure access to basic entitlements. Nations like Saudi Arabia, Congo, and Botswana come to mind. The basic deprivations which occur in these countries probably constitute human rights violations perpetuated by the global order. Again, this is not simply because the resource and borrowing privileges are causally implicated in basic deprivation in predictable and avoidable ways. Rather, it is because they are causally implicated in the denial of reasonable collective capabilities to avoid basic deprivations. This conceptual shift would allow us to focus on those severe deprivations occurring in nations where the capacities of national governments have been compromised by the global order rather than, say, nations like the United Stat es or Germany where unjust deprivations whose causes include global arrangements do occur, but in the context of citizens who in many cases enjoy the collective opportunity to avoid them. If we suppose identically predictable and avoidable deprivations in both sorts of countries in which the global order is causally implicated (that is, in two countries where one has reasonable national opportunity to avoid external harm and the other does not), these deprivations would not imply the global order has equally violated human rights in both cases. The resource and borrowing privileges may violate the human rights of citizens in Congo but not of equally deprived citizens in the United States simply because it is unlikely these privileges though undoubtedly 200 causally implicated in the domestic events of the US have deprived the United States of the reasonable collective opportunity to create secure access to basic entitlements. The United States and all other nations are primarily responsible for the deprivations of its citizens if they have reasonable opportunity to avoid those deprivations. This is true even where the resource privilege constitutes a predictable and avoidable necessary condition in the creation of those deprivations. 225 This implies something very important for our current World Trade Organization (WTO) version of global capitalism. The general idea increasingly recognized in WTO agreements treatment should be strengthened and extended. What is morally relevant to the assessment of trade agreements is not identical treatment between nations, but whether the terms of cooperation equally consider the conditions of a society and its reasonable ability to create background justice for its citizens. Low-income countries are different than high-income countries and in many cases these differences affect their differential success in securing entitlements for citizens. Protecting social opportunity as a fundamental tenet of global justice may require differential treatment of nations. While 225 As Pogge and Thomas Picketty have argued respectively, the tax percentage required to guarantee basic healthcare for all human beings is very low. This by itself shows that the global order could be redesigned to avoid many of the deprivations which occur in nations who clearly have the national capability to avoid those deprivations themselves. I mention this fact simply to make clear that there are probably many instances of deprivations in nations that are predictable and avoidable through modifications of either domestic or global institutional features. 201 the WTO is increasingly recognizing this 226, there remain serious shortcomings. These can be broken up into three areas: The voluntary enforcement of preferential treatment Current voluntary enforcement of preferential treatment creates an unfair political relation between rich and poor nations since this preferential treatment may be revoked by rich nations for whatever reasons they deem appropriate. This puts poorer nations in an unfair bargaining position because their social opportunity to protect their citizens can be effectively ransomed. Legal Representation at trade negotiations Another aspect of differential bargaining power in trade negotiations concerns disparities in legal representation between rich and poor nations. Thomas Pogge pointed out have missions at its headquarters in Geneva. Many more can barely afford to bring 227 These problems of legal representation and fair trade negotiation continue today. 228 226 J.Stiglitz, Making Globalization Work (W.W. Norton & Company, 2007), p.82 227 This quote appears in Pogge (2002), but is a reprint from The Economist , September 25, 1999. 228 Stiglitz, Making Globalization Work , p.97 202 Public Transparency of Negotiations As the recent Transatlantic Pacific Partnership (TPP) trade negotiations demonstrate, it is standard practice for trade negotiations to be held in virtual secrecy. The public is not allowed toview and assess the terms of cooperation. This weakens the bargaining power of poor countries that could use the benefit of public oversight. Transparency isa key element in producing more just global terms of trade. Subsidies, Tariffs, and Nontariff Barriers Recognizing that poor countries require differential treatment in securing the social opportunity to protect citizen entitlements, compels recognition that terms governing subsidies and tariffs may need to be differential. Stiglitz has proposed that middle-income and low- income countries should be permitted to open up their markets to one another without reciprocating with rich countries. Similarly, nurturing social opportunity may require that poor countries have the political space to use subsidies, tariffs, and nontariff trade barriers to protect or strengthen infant industries. The insistence by rich nations that these strategies of economic growth be blocked for poor nations severely compromises the ability of some nations to provide for citizens and should be investigated as a human rights abuse. Indeed, as Pogge quotes from an UNCTAD study concerning tariffs and subsidies, There is strong evidence that in many product markets that are protected in the North, producers in developing countries have a competitive advantage or are able to acquire one. The potential for large overall expor Report. It is 203 estimated that an extra $700 billion of annual export earnings could be achieved in a relatively short time in a number of low-technology and resource based industries. Agricultural exports could add considerably to this figure. All- in-all, the increase in annual foreign-exchange earnings could be at least four times the annual private foreign capital flow in the 1990s. Moreover, unlike a large part of such flows, the resources would be devot ed to productive activities, with beneficial effects on employment. 229 What is especially relevant here are the net-income gains that would accrue directly to poor citizens thus enabling low-income countries to eradicate poverty. There is evidence that an elimination of Western trade barriers would produce somewhere between $135.3 billion and $203 billion directly associated with poverty reduction, affecting somewhere between 320 million and 500 million people. It is much more difficult to estimate the likely substantial but counterfactual net income gains and corresponding gains in the opportunity to satisfy basic entitlements in specific nations that would accrue by permitting low-income countries to use tariffs and subsidies to erect and protect infant industries. (b)As I complete this chapter in July of 2015, Greece and the ruling Syriza party under the leadership of Alexis Tsipras are in the process of negotiating a avoid further default on national 229 Reprinted in Pogge, to the from UNCTAD, Trade and Development Report: Fragile Recovery and Risks (UN Publications, 1999) 204 debt. Though Syriza was elected promising opposition to EU-IMF imposed austerity especially to reductions in government spending like pension cuts and to privatization of national assets the government has vot ed to accept loans from the European Bank on tough austerity terms. Former finance minister Yanis Varoufakis who resigned about three weeks agohas publicly called the terms of the debt restructuring a Versailles 23 writes anthropologist David Graeber in Debt: The First 5000 Years , no better way to justify relations founded on violence, to make such relations seem moral, than by reframing them in the language of d ebt above all, because it immediately g. Mafiosi understand 23 When a nation cannot pay its debt, it has three options: default or restructuring of terms, sometimes including the possibility of debt forgiveness. The first option brings with it the fear of economic collapse which brings with it a severe human cost. But the second option can also be painful as the terms of restructuring may force the country to make cuts to public spending. More specifically, when a nation cannot pay its debt faces default, it may seek terms of bailout with the IMF who can then engage in involuntary structural adjustment of the national budget to facilitate repayment. These 23 http://www.reuters.com/article/2015/07/15/us-eurozone-greece-versailles-idUSKCN0PP22Y20150715 23 D.Graeber, Debt: The First 5,000 Years (New York: Melville House Publishing, 2014), p.18 205 forms of restructuring may severely limit the effective ability of national governments to provide the conditions of background justice for their citizens. There is a temptation in such cases to attribute full responsibility to the debtor nation since loans are an apparently consensual activity. But there are a number of factors at work. First, a nation may be unable to make loan repayment through no apparent fault of their own as when nations who maintain reasonable borrowing practices is hit by a natural disaster or a devastating flux in world market prices which devalue a central export. Second, while borrowers often borrow too much, lenders are also often significantly to blame since it is they who are charged with responsibility to his articulation of the democracy panel also becomes relevant here, even if more difficult to implement. Lenders should be concerned not only with the economic credentials of borrowers but also whether they meet certain minimal democratic features which might justify them taking loans in the name of citizens who will have to pay them back. Finally, the current set up of IMF bailout for creditors is at risk of creating a moral hazard in which lenders are rewarded for repayment but suffer no negative consequences for risky lending. If lenders perceive the likelihood of bailout when the debtor nation does not repay, they are effectively incentivized to lend more than they defaults are born not only by lenders and debtors but by many others who may have little involvement in the transaction, there is a particular need to find ways of getting 206 countries to reduce borrowing and lenders to lend less. In the meantime, ther e is a serious need to mitigate the worst impacts by considering global forms of debt relief and restructuring analogous to national bankruptcy laws. As Stiglitz puts it, every advanced industrial country has recognized the importance o f bankruptcy laws that help individuals and firms to restructure overbearing debt, we have no parallel set of laws governing the restructuring of sovereign debt, ensuring that it is done fairly, efficiently, and 23 Conclusion world is interconnected according to institutional terms of cooperation that have the potential to significantly harm nations and their citizens to the point of violating the most minimal entitlements people have in simple virtue of their humanity, namely, our human rights. Nevertheless, there is a question of how to understand responsibility and obligations related to basic respect human rights in a globalized world. I have here taken it for granted that citizens of a single socie ty may together in collective pursuit of shared projects pursue a democratic vision in which they accumulate special obligations to one another. But human rights place the most stringent and morally weighty limits on the means that a nation may use to purs ue its 23 J.Stiglitz, Making Globalization Work (New York: W.W. & Norton Company, 2006), p.213 207 domestic agenda. All nations and the terms of cooperation they erect between one another must respect human rights. I have argued in this chapter that nations are bound by the most solemn obligation to avoid participating in the construction of a global order that is causally implicated in denying other nations the reasonable opportunity to provide secure access to basic entitlements for their citizens. The great work of Thomas Pogge has been used as a counterpoint and I have offered my account of institutional human rights as a modest modification of his account. The primary benefit of this modification, I think, is that it helps to emphasize national responsibility in a way that is not accented in active rather than passive objects, but also may help to unite with views like that of David Miller which see themselves as significantly at odds with Pogge. It also redirects our attention away from thinking that all remedial responsibility for the miserable poverty in the world can be carried out under the banner of negative duties and toward the task of looking toward justifications for positive duties connected to human rights. Finally, this view establishes the outline of a research program in which the empirical effects of the global order on specific nations can begin to be the serious object of study. I have suggested with Pogge that both international trade and global debt relations should be among the primary themes of focus. Admittedly, I have not defined in any detail what it means for a nation to have a reasonable opportunity to provide basic entitlements to its citizens. I have sought 208 merely to reformulate our attention to the minimally proper general relation between the global order and the nations within its jurisdiction. Indeed, I have not yet said much about constitutive entitlements that make up what I have argued is the primary entitlement of free and equal democratic citizenship. It is to this difficult question of basic entitlements that I now turn. 210 Chapter 5 Political Liberalism and Universal Goods It is now time to take stock of the conclusions in this volume by placing some of the central points of previous chapters into a general narrative and to prepare ourselves for the present chapter concerning basic entitlements of justice. I have argued that some conception of social justice is unavoidable for those involved in political action. The only serious question is whether the conception of justic e we adopt is reflective and defensib le. Attempts to circumvent justice-talk (or what Crocker c alled development theory practice ) by appeal to supposedly neutral mechanisms like capitalist markets or Marxian tropes about the end of scarcity are two counterproductive and incoherent sides of the same coin.23 Some commitment to a vision of justice some answer to the question of who is owed what by whom is an inescapable presupposition of political life. We do best, then, to openly discuss and reflect on the nature of justice and the principles of our political commitments rather than to promot e absent-minded conformism. 23 Again, these left and rightwing versions of the appeal to normative neutrality are what Deleuze called a two apparent disjuncts which are in fact united in a common operation. 210 In the second chapter, I argued that the most basic democratic entitlement of justice concerns the right to receive justification for the design of the social powers to which one is subjected. Obversely, I conceived the primary feature of injustice to be situations in which human beings are subjected to forms of power which they have insufficient reason to accept. I have gone beyond Rawls in subscribing to the democratic prejudice of our time, namely, the assumption that all human beings deserve free and equal democratic citizenship. But following Rawls, I offered two primary arguments for how to flesh out justification for the political liberal understanding of democratic entitlements: (1) Shareable justifications are necessary conditions of treating others in democratic fashion as free and equal, and (2) Treating one another as free and equal is necessary to avoid an unstable society grounded in power struggle, or what Rawls called a modus vivendi. But providing for each individual a proper justification for the forms of power to which they are subjected becomes incredibly complicated due to the fact that we can no longer expect the full use of reason to produce any exhaustive convergence of opinion on these matters. In order to respect individuals under conditions of reasonable pluralism due to what Rawls called the burdens of judgment the political liberal strategy is to nurture a shared culture of reasonable citizens, i.e. people committed to finding and living with one another according to terms which do not presuppose any particular religious or metaphysical worldview. The creation and maintenance of such a reasonable and politically liberal culture is a key condition for the emergence of long-term and stable democratic society. 211 In the third chapter, I further articulate the notion of a politically liberal culture of society. Rather than focus on developing comprehensive principles for every domain of life, political liberals seek convergence by narrowing focus to finding principles for the design of major social and economic institutions of society. This is in the first instance because socio- the identities, desires, and well-being of human beings, but also because of various collective action problems including the challenge of asymmetrical information that make the achievement of background justice otherwise impossible. Moreover, an institutional focus preserves a reasonable though not inviolable domain of personal liberty and private prerogatives in which individuals can pursue the good life as they have reason to see it. On these grounds, the moral division of labor proposed by Rawls between those principles which govern institutions and those which govern individual interactions is a crucial element of the way that justice is approached by a reasonable political liberal culture. The fourth chapter conceptualizes a division of institutional responsibility for the basic entitlements of background justice between domestic basic structures and the global order. I argue there that the minimal responsibility of the global order is to respect human rights by avoiding the construction of institutions and policies which predictably and avoidably deprive societies of the opportunity to satisfy basic entitlements for their citizens. I demonstrated how this institutional account of global 212 justice and human rights differs modestly from the work of Thomas Pogge and may to conceive a global order that respects human rights as one in which societies have the reasonable opportunity to design basic structures in ways that satisfy the basic entitlements of their citizens. Other nations violate institutional human rights when they enact policies which unacceptably deprive other societies of their ability to effectively discharge social responsibilities. Though much clarification of this proposal remains, the explicit emphasis on social opportunity already offers important redirection for both empirical research and our understanding of the most pressing obligations facing those primarily responsible for the current design of the global order. Taking together the central lessons of chapters 2, 3, and 4, the struggle toward social justice demands we ask how to build a culture of reasonable citizens who see themselves obligated to create socio-economic institutions that allow all people secure access to basic entitlements necessary to live lives they have reason to value. Reasonable citizens will understand their responsibility for creating such a world to be discharged primarily and in the first instance to other citizens through their participation in the design of their common basic institutional structure, but will also of cooperation according to which they interact with other societies impact the distribution of basic entitlements. I take these features a passion for reasonableness and a subsequent emphasis on basic entitlements of justice, institutional focus on the 213 basic structure as the most important necessary condition of achieving basic entitlements, and attention to how global terms of cooperation impact and potentially violate human rights by undermining the reasonable opportunity of people in other societies to satisfy basic entitlements to constitute the primary political orientation of just people. Nonetheless, while I used the formal concept of basic entitlement and have argued that the most basic (primary or intrinsically valuable) entitlement of justice is the entitlement to an institutional order in which reasonable people may live lives they have reason to value, I have postponed until now the task of understanding this general entitlement in more specific or constitutive terms. How to understand let alone operationalize this characterization of just entitlement, especially given our assumption of the burdens of judgment, is far from obvious. I remarked in Chapter 1 of this volume that a crucial purpose of thinking about justice was to provide a clear target that one can aim for in political action. The intention in this chapter is to provide a clearer target by moving from the formal picture of entitlement I have offered to a more specific account. As will become clear, I do not accept the social primary goods doctrine offered by Rawls and seek to argue in favor of the capability approach as a superior political liberal account of the good. But for the moment, in order to set the task of this chapter properly, the first abstract a pproximation of social justice I intend and have argued for in this volume can be seen in the graph on page 217. 214 Constitutive Basic Entitlements and Conditions of Free and Equal Citizenship Our primary entitlement in a just and stable democratic society (as claimed in Chapter 2) is the entitlement to free and equal citizenship. I follow Rawls in interpreting this as an entitlement to live under forms of power we have reason to accept i.e. institutions which respect our capacity to live lives we have reason to value along with the duty of reasonableness which recognizes the burdens of judgment and the subsequent existence of reasonable pluralism. The general capacity to live according to the individual lights of our own reason (the central features of which Rawls calls our moral powers) can and must, for purposes of interpersonal comparison, be understood as a range of more specific entitlements yet to be defined, but which we can for now call constitutive entitlements. For example, we may think that the primary entitlement of living lives we have reason to value presupposes at least a range of constitutive entitlements such as basic needs to water, food, and shelter. Under the banner of constitutive entitlements we debate what it means to respect the primary democratic entitlement. Further, reasonable citizens, because we see our primary duty as the task of living under shareable principles of justice, assume the duty to respect not only the primary entitlement as some abstract obligation, but also to 215 U FIGURE 1 G O M S J e We ve Re Instrumental Conditions of Basic Entitlements 1.Domest ic and Globa l Ins tit utiona l Structure s2.Mater ial artifac ts and Tec hnolog ies incl udingIncome /W ealth3.Inner- States of Per sons/B iolog ical Ca pa citi es/Na turalEndowmentsDuty of Reasonableness Duty to Respect Basic Constitutive Entitlements Duty to Support Basic Structure Providing Secure Access to Constitutive Entitlements for All Citi zens Neg ative Du ty to Suppo rt Glob al Term s of Cooper ation 216 respect whatever range of constitutive entitlements best flesh out the primary democratic entitlement of free and equal citizenship. Since this chapter will be critical of the social primary goods doctrine, I can say from the outset that I will argue that constitutive entitlements are best understood in terms of human capabilities. Finally, there will be a range of instrumental conditions i.e. conditions which, in a particular context, are required for or best promote the constitutive entitlements. Gathering past aspects of the argument and anticipating a bit, these instrumental conditions will include basic institutional structures, artifacts (i.e. whatever specific material or technological goods are required to promote constitutive entitlements, including income and wealth), and inner states of people or natural endowments (i.e. the physical and mental characteristics necessary for individuals to achieve the constitutive entitlements). Taking these together institutions, material artifacts, inner individual capacities we refer to the general category of primary instrumental determinants of justice entitlements (see graph). To clarify: assuming for the moment that avoidance of hunger is a constitutive entitlement, then food is an instrumental artifact of that entitlement, along with the means to attain food such as perhaps money or land. Similarly, if living to the end of a normal human life is a constitutive entitlement, then certain inner states such as absence of illness along with artifacts like medicine or certain social institutions (e.g. an effective police force), all may be instrumental conditions of that entitlement. What should be stressed is that 217 the instrumental conditions for the constitutive entitlements will be highly contingent upon the particular social context we are focused upon. Readers may notice that the distinction between primary and constitutive entitlements on one hand and instrumental entitlements on the other in fact roughly tracks the distinction between ends and means. Primary and constitutive entitlements fall under the category of ends because they are valued for their own-sake whatever else they may offer, while instrumental conditions are valued as mere means, valuable only insofar as they promote primary and constitutive entitlements. While this distinction is correct and important as I will showI want to call attentio n to the fact that there is nothing we have said whic h precludes elements that are understood as ends (primary and constitutive entitlements ) from appearing also as quite effective means to other entitlements. That is, certain elements may appear simultaneously as ends and as means.23 These categories, then, are meant for now as a way of summarizing the general conclusions reached so far and of staging some conceptual preparation both for a critique of social primary goods and for consideration of the capability approach. 23 Indeed, this distinction goes back at least to Republic where we find the following passage: 218 Means, Ends, and Entitlements But an objection already emerges. I am asked, if my argument asserts that the primary universal entitlement of justice is free and democratic citizenship and this means the capacity to live a life under institutions one has reason to value; and if, further, I assert that we are to embrace the burdens of judgment, how could there be any singular or unique theoretical specification of constitutive entitlements at all? The objector goes on, if citizens are really intent upon respecting the burdens of judgment and asserting that an institutional environment which respects reasonable pluralism is the primary entitlement of justice, then perhaps they should avoid any grandiloquent philosophical announcements about intrinsically valuable ends. After all, by the lights of political liberalism, the issue of which goods are of intrinsic value is a matter of reasonable disagreement and ultimately, therefore, an issue for the individual herself to decide. This objection is important and highlights an important tension at the heart of political liberal (and indeed democratic) approaches to justice. If political liberalism asserts the existence of reasonable pluralism and prioritizes the ability to live under institutions guided by conceptions of justice shareable in virtue of their respect for reasonable pluralism, and then turns around only to dictate a list of intrinsically valuable goods which constitute and flesh out the primary entitlement of plural reasoning, then it has seemingly violated its own commitment to the free use of reason! Surely a central aspect of the entitlement to live under conditions which respect reasonable pluralism is to be guaranteed the liberty to set for oneself the goods which are 219 to constitute fr ee reasoning? Political liber al approaches to justice, then, face a tough challenge: they must somehow simultaneously indicate the range of instrumental conditions necessary for the free and plural exercise of reason (otherwise the theory is not precise enough to guide social action and the design of institutions) without dictating the constitutive entitlements (otherwise the theory violates the very entitlement of free reason it is committed to protecting). But how can we discern the instrumental conditions of the plural exercise of reason without an account of the constitutive entitlements that we are aiming to protect?23The first contribution of Rawls to this problem is to argue that the forms of classical Utilitarianism then (and often still) dominant among economists and policy makers do not provide an adequate solution to the tension between plural reason and the question of how to conceive its constitutive entitlements and instrumental conditions. Its weaknesses are two-fold: (1) In conceiving justice as the maximal aggregate of welfare (conceived in terms of some positive mental state such as pleasure of of existence. Specifying justice in terms of aggregate welfare meant that inequalities in distribution between individuals required no justification and therefore no concern for providing individuals a shareable justification for the power to which they are 23 Or, to put the issue in more traditional philosophical language, how can the right be specified without an account of the good? 220 subjected. (2) But even if Utilitarianism could find some way to justify concern for each individual, Rawls argued that its focus on welfare was too limited a domain of assessing the advantages and disadvantages citizens enjoy. Put simply, individuals often have reason to value things very different than their own welfare. Rawls proposed a form of social justice more attentive to the individual exercise of reason by replacing simple concern for the aggregate with concern for the equality of each citizen and by replacing a focus on welfare with a focus on social primary goods. We are to show respect for the equality of each citizen by focusing upon their holdings in the space of social primary goods. Rawls understood entitlements to primary goods as much more compatible with attempts to show respect for reasonable pluralism. The basic line of thought goes like this: Since as political liberals we are committed to the free and equal use of reason and since the free use of reason entails capacities to decide what has intrinsic value and what does not we should construct a list of primary goods whose instrumental value is unquestionable no matter what reasonable account of intrinsic value one adopts. Or, as Rawls puts it, Primary goods are singled out by asking which things are generally necessary as soc ial conditions and all-purpose means to enable human beings to realize and exercise their moral powers and to pursue their final ends (assumed to lie within certain limits). 23Similarly, he says, 23 J.Rawls, in S. Freeman (ed) Collected Papers , p.526 221 These goods, we say, are things that citizens need as free and equal persons, and claims to these goods are counted as appropriate claims. 23 or movement and free choice of occupation against a and self- It is import ant to note, however, that Rawls takes income and wealth to be both - interpersonal comparisonwhich his emphasis on equality demandswhile understanding the 23 Putting the analysis into the categories of primary entitlement, constitutive entitlement, and instrumental conditions, then, Rawls understands liberties , opportunities, access to positions of power, and self-respect as constitutive entitlements, all of which are to be secured and measured with a combination of instrumental conditions such as institutional design, income and wealth. What is crucial here, however, is that, given the principles Rawls claims to reach with his social contract reasoning, he greatly simplifies the probl em of interpersonal comparison. The liberties are to be distributed equally and opportunities according to in their distribution are the rights and prerogatives of authority, and income and 23 J.Rawls, Priority of in Collected Papers, p.257 23 J.Rawls, Political Liberalism , p.181. Also see D. Crocker, Ethics of Global Development: Agency, Capability, andDeliberative Democracy (Cambridge University Press, 2008), p.117 222 2 Now, given that Rawls admits in his later years that his conception of justice are serious reservations about whether the doctrine of social primary goods can do an adequate job of understanding freedom in the absence of lexical priority for individual liberty and fair equality of opportunity. Further, there is a problem of how adequately an equality of income and wealth between individuals can take adequate note of differences in fair or effective opportunity. But let us take a step back and approach the adequacy of social primary goods from a more general perspective. Entitlements and the Informational Space of Interpersonal Comparison All theories of justice assert some informational space in which to assess justice and injustice. I take the term from Amartya Sen who uses the term to refer to the sorts of information that an exercise of interpersonal comparison permits. If we conduct such comparison in terms of aggregate utility, we focus primarily on information about total utility and only focus instrumentally on other sorts of information such as individual liberty, opportunity, etc. Indeed, as we have seen, one interpersonal comparisons are conducted from the space of utility/welfare to the space of social primary goods. Now, we ask given our commitment to free and equal democratic 2 J.Rawls, Theory of Justice , p.80 223 citizenship understood as the capacity to exercise the irreducible plurality of reason whether the doctrine of social primary goods is adequately developed to understand freedom under conditions of reasonable pluralism. Freedom has long been and still is a contested topic. It is often appealed to in political discourse with no precise or even clear sense of what is being discussed; someti take this not as a reason to abandon the language of freedom, but as an invitation to get more precise about what freedom is and how we value it. Reminding ourselves of ach to libertarian thinking we encountered in chapter 2, we can see that there are at least two central aspects of freedom that we may have reason to value: the process aspect of freedom captured by notion of liberty and the outcome aspect of freedom captured by the notion of opportunity.24 Rawls insisted there on fair or effective liberty, a concept which denotes not merely concern with the absence of external interference but also concern with the presence of an ability to use non- interference conditions effectively towar d the achievement of our ends. To illustrate: when members of the Joad family in Grapes of Wrath set out for California after losing their family farm, we c an see two general sources of their 24 This distinction between process and opportunity aspects of freedom is often discussed. For three excellent sources see A. Sen, and Social in Rationality and Freedom (Cambridge, MA: Harvard University Press, 2002). A. Sen, The Idea of Justice (Cambridge, MA: Belknap Press of Harvard University, 2009), Chapter 11. D.A. Crocker, and Capability: The Foundation of and Development Ethic, Part Martha Nussbaum and Jonathan Glover (eds) Women, Culture, and Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000) 224 inability to live lives they reasonably value.24 First, they suffer a variety of bad outcomes they are at various points hungry, sick, immobile, painfully nomadic, humiliated and shamed, cut off from key sources of their traditional identity, without leisure, and without the community ties we might call social capital. All of these bad outcomes are logic ally compatible with process freedom that is, we could imagine an alternative scenario in which the Joad family had exercised contro l over their situation and these same outcomes resulted. Such an exercise would allow us to see another class of concerns arise, namely, the various processes which generated the outcome i n question i.e. the conditions, actions, and happenings which precede the outcome-state of affairs. We may ask questions such as Are the Joad family causally responsible for their plight? Wer e they in control of the events that got them to such a lowly state? Who did this to them? We may value freedom not simply for the ability to get the outcome we value, but also for the command we have over the processes which lead to getting what we value. In the case of the Joads, Steinbeck helps us not only feel the pain of the various outcome deprivations they suffer, but also the process deprivations as we see the companies arrive to take their land, the police and company thugs who push them around or threaten their lives, and the workers who abuse one another in ruthless competition for employment. Threats to process freedom need not be erected by clearly identifiable people or groups. One of the high points of Grapes of Wrath is the ability to show how process 24 225 freedoms can be taken away by apparently anonymous institutional structures. When the tenants being forced from the land ask what will happen to them, the owners respond: the bank man. Yes, but the bank is only made of men. quite wrong ther e. The bank is something else than men. It happens that every man in a bank hates what the b ank does, and yet the bank does it. The bank is made it.24Similarly, when one looks at the Voices of t he Poo r gathered as an ethnographic of poverty and deprivation commissioned by the World Bank in 1999, we see the same dual aspects of freedom being emphas ized. Among the 60,000 poor men and women interviewed, they not only stressed that living in poverty concerns deprivations of food, water, security, and health, but also, as one researcher summarized his findings from 24 When we think about the various aspects of freedom that we value, it is clear that there are numerous opportunity and process aspects of freedom. Again, to capture these 24 Grapes of Wrath , p.33 24 D.Narayan, et. al, Voices of the Poor: Can Anyone Hear Us? (Oxford: Oxford University Press for the World Bank, 2000), p.39 226 dual components, Rawls stresses not only liberty, but the ability to effectively use that liberty to pursue the ends we value. But there are two grave defects in the doctrine of social primary goods. First, there is no language for the various process and opportunity aspects of freedom. As we have seen briefly above, there are many dimensions of freedom and we would do well while thinking about basic entitlements and crafting institutions that protect them to es not elaborate in an attempt to remain distant from the question of good. Second, and more importantly, Rawls recommends that the identification of the least advantaged class in society required by the Difference Principle be carried out in the space of income and wealth. But this introduces a difficulty sometimes referred to as the problem of conversion. In particular, if one conducts interpersonal comparison in the informational space of wealth and income (or other material resources), we are rule out t he relevance of factors which govern individual ability to convert income, wealth, and resources to the actual process and opportunity aspects of reason we may have reason to value. For example, in the case of the Joad family, increasing their command of income and wealth may have helped with some unfreedoms but not others. Money might have helped the family eat more or fix their car, but not with the indignity that came from the inability to work, the loss of identity resulting from leaving Oklahoma, or the absence of social capital that arises from the reshuffling of the capitalist incentive structure. Similarly, 227 money and income is not a cure-all for the physical abuse women often face in the household or discrimination that they may face when apply for or working at jobs. In his latest book The Idea of Justice , Sen offers a typology of causal factors which mediate this relation of conversion between income/wealth and freedom: 1. physical capacity in relation to age, sex, gender, or disability that affect how much you can do orbe with a given amount of income. For example, the instrumental conditions necessary for a normally-abled person to be reasonably mobile are much less than what is required to get around for someone who cannot walk. Similarly, the caloric intake required for a male to avoid hunger may be significantly more than is required for a similarly active female. 2. hich affect how much can be done with a given amount of income. Those who live in warmer parts of the world may not need to expend as much to maintain adequate shelter, while those who live in areas that are flooded or with radical temperature changes may require greater income to secure similar levels of achievement. 3. public require when doctors are free at the point of228 service or as much income to stay safe when one does not have to bribe the local police for elementary protection. 4. much it costs to community. Maintaining friendships among the rich often requires much more income than among the poor . While a minim al condition of friendship or ability to sip expensive drinks and wear the latest fashions, the same achievement in the latter mighthappily be much more lax in terms of income expenditure.24Social primary goods fails to account for any of these causal factors in the conversion of income to process and opportunity aspects of freedom. So, returning to our graph which laid out the first approximation of minimal social justice, we notice that the Rawlsian doctrine of social primary goods calls attention to the process and opportunity aspects of freedom as constitutive entitlements, but fails to delineate the multidimensional features of these areas. This is in large part because Rawlsian political liberalism sought to stay distant from any thick account of the constitutive entitlements of justice by conducting interpersonal comparison in the informational space of instrumental conditions especially wealth and income. But, as 24 See A. Sen, The Idea of Justice , p.255 we have seen, interpersonal comparison in this space omits from view various factors that affect the conversion of income and wealth into process and opportunity aspects of freedom we may have reason to value. As such, the Rawlsian approach has the wildly unacceptable result of judging two individuals who command identical income and wealth as being identically advantaged from the perspective of constitutive and primary entitlements even if one is severely disadvantaged by factors which decrease her ability to convert income into freedom. What is needed, then, is way of directly taking account during exercises of interpersonal comparison the various process and opportunity aspects of freedom that people may enjoy. Amartya Sen and Martha Nussbaum who are the pioneers of the capability approach along with other contributing theorists including David A. Crocker, Des Gasper, Ingrid Robeyns, Nigel Dower, Sabina Alkire, and Enrica Chiappero- Martinetti have argued that capability is precisely the concept that captures both process and outcome considerations in assessments of interpersonal advantage. To have a capability is to have what Rawls called an effective opportunity the freedom to do or to be what one has reason to value. Capabilities, then, can take many forms, can be weighted in many ways, and can be relevant to many different sorts of interpersonal assessment.2424 We postpone for the moment the question of which capabilities are to be prioritized as basic. For political liberals who pursue replacing the informational space of social primary goods with that of capabilities entitlements, their outline of minimal social justice might look something like the graph on page 231. Multidimensional Processes and Outcomes: Agency to Well-Being It is quite possible, then, to defend the capability approach as a way of doing the job of social primary goods without the accompanying vagueness about process and outcome aspects of freedom and without hiding the most egregious features of the conversion problem. But there is a more general way to understand contribution by seeing, first, how he intervened in certain more general debates beyond Rawls dominant in political philosophy in the 1970s and, second, how his particular intervention helped to bring political philosophy and economics (in particular development economics) much closer to one another. The dominant debates in ethics in the 1970s were then as they sometimes still are today between utilitarian consequentialists like R.M. Hare and various non-consequentialist thinkers like Nozick and Rawls. We have seen already that Rawls rejected Utilitarianism on grounds that it embraced neither a concern for equality nor the proper informational space in which to assess that equality. And while it is not correct to say that Rawls rejects consequentialism outright after all social justice for Rawls entails both a particular institutional design and a principled distributive allocation of social primary goods (both of which can characterized as consequences or states of affairs) his informational 231 *Freedom to Do and To Be W hat We Have Reason to ValueCapa bility Entitlements Instrumental Conditions of Basic Capabiliti es 1.Domestic and Glob al Instit utional Structures2.Material Artifacts/Resources3.Inner States/Biological Capacities/Natural EndowmentsNegve r Termof CerWc D rc rcre Prg ecre Acceve eme fr ADuty of Reasonableness Duty to Respect Basic Capabiliti es 232 base was nonetheless large and unwieldy for policy makers, operating at the level of institutional design features as well as distributions of income and wealth. Sen provides a language in which he attempts to retain an essentially consequentialist form of reasoning i.e. good policies are those which promote optimal distributions of capability sets while at the same time making it possible to incorporate a variety of procedural or non-consequential concerns. In this sense he attempts to circumvent much of the debate between deontological heirs of Immanuel Kant and the consequentialist descendants of John Stuart Mill. As Sen puts it, There is no particular reason to insist on an impoverished account of a state of affairs in evaluatin g it. In particular, the state of affairs, or the outcome in the context of the choice under examination, can incorporate processes of choice, and not merely the narrowly defined ultimate result24 undertaken, agencies involved, processes used, etc. along with the simple outcomes seen in a way 24 A capability, thenby gathering up under itself both processes and (culmination) outcomescuts much of divisiveness out from under the deontological- consequentialist debate. 24 A.Sen, The Idea of Justice , p.215 24 Ibid, pps.215-221 233 Let us expand on this point. At the heart of the notion of capability are the notions of agency and well-being. Similarly situated are the importance of freedom and achievement. The distinction between agency and well-being captures the fact that a person may have reason to value either the realization goals directly connected to own quality of life broadly understood (well-being) or goals that transcend narrow self- existence (agency). Combining both agency and well-being with achievement and freedom, Sen formulates the following conceptual couplets: (1)Agency achievement the realization of other-related goals. (2)Agency freedom the ability to engage in processes of choosing the realization of other-related goals. (3)Well-being achievement the realization of self-concerned goals. (4)Well-being freedom the ability to engage in processes of choosing the realization of other related goals. In addition to expanding the conception of well- or the concepts of agency and well-being yield a number of distinct advantages. One central feature is that the language is geared to reject any assumption that human beings are psychologically egoistic or narrowly self-concerned. The agential ability to pursue goals other than personal survival and self-promotion is a regular part of human life the well- the institutions in which we are employed, the triumph of the political causes to which we 234 are dedicated, our communities and societies, the well-being of future generations, or even of other species. Agency goals matter to peoplebeyond their own well-being however broadly understood and should be taken into account when evaluating the words, - but need not be all of a objectives; for a person may pursue goals that reduce her well-being and even end her 24Crucially, and to expand on the abstract point made earlier about conequentialism and non-consequentialism, it is not only the achievement of self and other-related goals whic h matter to us, but the very processes and freedoms by which they come about. We often value our own free participations in the realizations of both our agency and well-being goals I want not only for my child to reach school on his first day, I want to take him. I want not only to see the best politician in office, I want to have a role in her selection. I want both an adequate supply of money and the ability to partake in making it through dignified work. Agency freedom captures respect for and the exercise of our choosing capacities as a potentially intrinsically valuable, non- instrumental feature of a good human life. Thus , we arrive at more fleshed-out and multidimensional conceptions of capability (freedom) and functioning (achievement). To achieve is to do or be 24 D.A. Crocker, Ethics of Global Development: Agency, Capability, and Deliberative Democracy (Cambridge: Cambridge University Press, 2008), p. 152 235 something we have reason to value. These achievements can concern oneself (well- being) or any other feature of the world (agency). To have a capability is to be free to have before oneself alternative possibilities for achievement of well-being or agency goals. More precisely, for any valued functioning X, we may inquire into the potential value of the value of capability to do X. Both functioning and capability can be sources of value in their own right. Outside of philosophy, Sen convinced economists they should pay attention to philosophical critiques of Utilitarianism and especially the critique of welfare metrics as the basis of interpersonal comparison, whi le at the same time showing how comprehensive outcomes capabilities and functionings could be substituted to construct more morally plausible indices within the consequentialist coordinates of economic models. Both the moral force of the critique of Utilitarianism and demonstration of t he relative technical ease with which revisions of economic models could be made were both large parts of how the capability approach become so well received among economists and international policy makers. On the basis of the work being done by Sen, Mahbub ul Haq, Nussbaum, and others, the United Nations Development Programme (UNDP) constructed a variety of indicators including the Human Development Indicator (HDI), the Human Poverty Index (HPI), the Gender Development Index (GDI) and the Gender Empowerment Index (GEM).2 All of these 2 For a review of these and other indices including their conceptual and technical aspects see S. Fakuda-Parr and A.K. Shiva Kumar, Readings in Human Development: Concepts, Measures, Policies for a Development Paradigm 236 indices seek to measure human deprivation in a composite and multidimensional way, using an amalgam of considerations far beyond GDP per capita, but also life expectancy, adult literacy, school enrollment numbers (HDI), access to clean water and percentages of underweight children (HPI- 1), as well as consideration of these domains disaggregated according to biological sex (GDI). Research using these and other capability-bas ed indicators has been released annually since 1990 in the UN Human Development Report. There is evidence that these indicators have had some amount of practical impact in helping to remind policy makers that poverty is not simply the absence of income and also the reallocation of money and the redesign of institutions toward capability achievements. This discourse has increasingly penetrated international institutions such as the World Bank Development as Freedomas well as the Inter-American Development Bank where Sen has given a number of keynote speeches.25 French President Nicholas Sarkozy commissioned a study on capabilities in 2008 by both Sen and J. Stiglitz. Moreover, it might serve as the basis of constitutional proposals which enshrine particular capability entitlements.25 (Oxford: Oxford University Press, 2003), especially M. ul Haq, Birth of the Human Development pps.103- -139, S. Anand and A. - Human Development and Poverty: A Multidimensional pps.204- 220. For a recent critique of the HDI and GDI see T. Pogge, Politics as Usual: Behind the Pro-Poor Rhetoric (Polity, 2010), chapter 4. 25 D.A. Crocker, Ethics of Global Development , pps.55- 5625 Martha Nussbaum makes clear that this is among her primary uses of the capabilities approach. 237 Of course, the true difficulty is to make sure freedom-based analyses like the capability approach do not simply get coopted by institutional leaders who are interested in paying lip service to grandiloquent ideals, but basically go on without revising their practices. But here the philosophical analysis of democracy and justice cannot substitute itself for the passionate energy of a democratic public that holds leaders and institutions accountable. Philosophy can help us think well about the sorts of things that are desirable and owed to one another, but it cannot do the patient political work of bringing the world into line with those ideals. We need collective movements for that. Addressing Criticisms, Recognizing Limitations, and Final Remarks I have presented what I take to be compelling reasons to conceive democratic justice which in its minimal approximation entails the freedom and equality of each citizen as a series of entitlements within the space of capabilities. The proposal is aimed in the first instance as a replacement for the Rawlsian doctrine of social primary goods as a basis of interpersonal comparison for the application of justice principles. The basis of my argument is the claim that a direct focus on capabilities and functionings provides a way of overcoming the problem of conversion which attaches to any focus on instrumental entitlements rather than constitutive or intrinsically valuable entitlements themselves. In this way, the capability approach is more attentive to deprivations covered over by social primary goods and other resource-based approaches. But because the capability approach is sensitive to life quality in a number 238 of distinct dimensions, it may serve as a language which undergirds many sorts of political activities. Now is the time to address several three in particular questions and criticisms of the capability approach. (A) Is the capability approach really compatible with political liberalism or is it too paternalistic to respect the various sorts of lives that people may have reason to value? (B) Is the capability approach too permissive, that is, -committal with respect to principles of justice and therefore of little use for deciding the tough moral choices we must make in an interconnected world? (C) By shifting the language of justice and interpersonal comparison to the domain of ultimately complicit with the ideology of choice these criticisms are interrelated and intend to reveal the extent to which the capability approach is an approach to questions of justice an incredibly important one though in good political liberal fashion is also compatible with a variety of theories of justice and is not itself such a theory. (A) Even if the informational space of capabilities can avoid the problem of conversion, there is still a question about whether it is compatible or at least more with political liberalism. I have shown that at the heart of political liberalism is the idea that democratic institutions ought to protect reasonable pluralism and that citizens ought to formulate political 239 proposals in a freestanding fashion. If institutions are designed according to a single pluralism of values that political liberalism is supposed to respect? In responding to this worry, it is important to distinguish between three distinct and increasingly specific uses of the capability approach: First, the approach can be used simply as an evaluative space in which forms of agency and well-being in both their capability and functioning aspects can become objects of concern. This is simply to affirm the informational space of capability as the proper space of constitutive entitlement without affirming specific capability entitlements. Second, the approach can affirm a list of specific entitlements as the basis of political projects. That is, the capability approach can be combined with a more substantive theory of justice Rawlsian or otherwise aimed at generating distributive principles for specific types of capabilities and functions. Similarly, it can be combined as Crocker, Sen, and Sabina Alkire, respectively have increasingly suggested with procedural processes that make the selection of valuable capabilities sensitive to the empirical concerns of stakeholders. Moreover, the capability approach is compatible with different emphases on capability or functioning. If it were to turn out that choice in certain areas were not deemed especially valuable say, the choice of whether malaria would be eliminated in your neighborhood (we can assume there is no need for a vote on this) or the choice of which particular insurance company pays your medical service provider then the capability 240 approach can place more emphasis on the relevant functioning and less on the capability in those areas. Further, as Martha Nussbaum has emphasized, even after the selection of specific capabilities such as life, health, bodily integrity, and so on are selected for some i.e. there are many sets of instrumental conditions which may meet health and what is required to meet this or that capability or functioning might be quite contextually specific. 25Political measures to protect bodily integrity for women in the United States might include a reformation of the university procedures concerning sexual assault on campuses, or additional de-escalation for police officers in police departments with a history of inappropriate uses of force. While in other places and contexts, strategies to protect the same capability may be very different depending on the particular challenges to bodily integrity e.g. perhaps increased self-defense classes for women or changes in law allowing work outside the home in order to increase bargaining power in domestic relationships in order to reduce spousal abuse. These brief examples show the incredible diversity of the capability approach. Neither does the justification for targeting this or that set of capabilities require any appeal to religious or metaphysical basis. Though the capability approach is quite compatible with religious theories of justice for example, arguments from natural 25 M.Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (The Belknap Press of Harvard University, 2006), pps.155-176. 241 lawit does not presuppose any particular justificatory scheme. Indeed, what suits the capability approach for political liberal approaches to justice is that the approach is compatible with a pluralism of justice theories and procedures for priority setting and weighting. But this raises a potential objection. If the capability approach is so compatible with a variety of justice theories, does it have the teeth to provide justifications for tough moral choices i.e. situations in which the promotion of a targeted capability set for one group requires decrease capabilities in another group? other individuals to make tough sacrifices. It calls attentio n to a plethora of valuable capabilities but attaches no relative weights to them vis-à-vis one another. But, Schmidt argues, this is to avoid the most central aspect of political practice, namely, making contextual decisions about winners and losers. If a philosophical theory can give no guidance on this problem, Schmidt doubts its usefulness.25 In one sense, Schmidt is correct. Since the capability approach is not a full theory of justice but, rather, a theory about the proper informational space in which to conduct the interpersonal comparisons required by theories of justice, the capability approach by itself does not yield a decision procedure for understanding how to weight specific 25 See also a very similar comment by R. Dworkin. 242 capabilities vis-à-vis one another. But there are two important points that article overlooks: (1) Getting the informational space right is important for justice. The informational space of a justice theory directs us to the sorts of things that matter, focusing our attention in a highly specific way. In our own development practices, this has meant learning to pay much less attention to having things and much more attention to being and doing. No matter how precise distributional principles for settling conflicts and trade-offs, they cannot do away with the importance of a proper view on what is being distributed in the first place. A proper theory of the good or what is sometimes called the distribuendum especially one which makes itself compatible with the entitlements relevant to a complex democratic society under conditions of reasonable pluralism is by itself a tremendous achievement. (2)Further, as my remarks make clear, the capability approach can be combined with a theory of justice indeed any theory of justice in order to yield distributional entitlements. While Sen has done little in this area, choosing instead to emphasize the evaluative importance of the capability space itself, other capabilities theorists such as yields a list of human capability entitlements which, she argues, ought to be enshrined as capability approach has no squirm factor, I submit, could be alleviated by combining the theory two principles of justice. A political movement that aimed for a strict interpretation of the 243 difference principle understood in the space of capabilities would likely make more than a few of privileged elites squirm. The point I want to emphasize here is that the capability approach has the capacity to stay general and to function as a sometimes important reminder about the correct space of evaluation. Or, it has the capacity to get very precise identifying specific capabilities to be pursued by concrete political strategies. This adaptability is strength and not weakness. (C)We can see, then, that nothing about the capabilities approach commits it a priori to the endorsement of any specific political practice or institution. The question of the approach is always: Is the particular proposal before me the one most likely t o secure the instrumental conditions for the capability entitlements of those affected? This question raises a host of others: What are the range of agency and well-being freedoms and achievements to which this or that constituency is entitled? Which ones can we realistically pursue? What are determinant causal factors affecting the distribution of those entitlements? Should freedom or achievement be the primary emphasis? Who bears primary responsibility and can be expected to sacrifice most for these goals? What are the alternative strategies by which they might be pursued? A particularly important strength of the capability approach is that it forces political actors to get clear about the intrinsically valuable ends of their practices and to assess proposed means in light of those ends. It does not judge those ends for anyone, but invites the use of practical reason and directs that reason in important ways. 244 The capability approach helps us to see that capitalist markets can and do yield dress, us who have them. But there is nothing in the capability approach that requires we prioritize these freedoms for some over other sorts of freedom life, bodily health, in harmony with other species and the environment for all. Rather, the approach demands we take a stand on how to address that potential conflict. 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