The Idea of Justice
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Similarly, the ties that bind human beings in relations of duty and concern across borders need not operate through the collectivities of the respective nations.* To illustrate, a feminist activist in America who wants to do something to remedy particular features of women’s disadvantage in, say, Sudan would tend to draw on a sense of affinity that need not work through the sympathies of the American nation for the predicament of the Sudanese nation. Her identity as a fellow woman, or as a person (male or female) moved by feminist concerns, may be more important in a particular context than her citizenship, and the feminist perspective may well be introduced in an exercise of
‘open impartiality’ without its being ‘subsequent’ to national identities. Other identities, which may be particularly invoked in other exercises of ‘open impartiality’, may involve class, language, literature, profession, etc., and can provide different and competing perspectives on the priority of nation-based politics.
Even the identity of being human – perhaps our most basic identity
– may have the effect, when fully seized, of broadening our viewpoint correspondingly. The imperatives that we may associate with our humanity may not be mediated by our membership of smaller collectivities such as specific ‘peoples’ or ‘nations’. Indeed, the normative demands of being guided by ‘humanity’ or ‘humaneness’ can build on our membership of the wide category of human beings, irrespective of our particular nationalities, or sects, or tribal affiliations (traditional or modern).†
* The variety of channels through which people interact with each other across the globe today, and their ethical and political significance, are illuminatingly discussed by David Crocker, Ethics of Global Development: Agency, Capability and Deliberative Democracy (Cambridge: Cambridge University Press, 2008).
† The nature of identity-based reasoning, even of the most permissive kind, including the identity of belonging to the group of all human beings, must, however, be distinguished from those arguments for concern that make no use of any particular shared 142
c l o s e d a n d o p e n i m p a r t i a l i t y Behavioural correlates of global commerce, global culture, global politics, global philanthropy, even global protests (like those recently on the streets of Seattle or Washington or Melbourne or Prague or Quebec or Genoa) draw on direct relations between human beings –
with their own standards, and their respective inclusions and priorities related to a variety of classifications. These ethics can, of course, be supported or scrutinized or criticized in different ways, even by invoking other inter-group relations, but they need not be confined to – or even be led by – international relations (or by ‘the law of peoples’).
There is something of a tyranny of ideas in seeing the political divisions of states (primarily, national states) as being, in some way, fundamental, and in seeing them not only as practical constraints to be addressed, but as divisions of basic significance in ethics and political philosophy.* They may involve very many diverse groups, with identities that range from seeing oneself as a businessman or a worker, as a woman or a man, as a libertarian or a conservative or a socialist, as being poor or rich, or as a member of one professional group or another (of, say, doctors or lawyers).† Collectivities of many different types may be invoked. International justice is simply not adequate for global justice.
This issue has a bearing also on contemporary discussions on human rights. The notion of human rights builds on our shared humanity.
These rights are not derived from the citizenship of any country, or the membership of any nation, but are presumed to be claims or entitlements of every human being. They differ, therefore, from membership, but nevertheless invoke ethical norms (of, say, kindness, fairness or humaneness) that may be expected to guide the behaviour of any human being. I will not, however, pursue this distinction further here (but see my Identity and Violence: The Illusion of Destiny (New York: W. W. Norton & Co., and London: Penguin, 2006)).
* There is a related issue of the tyranny that is imposed by the privileging of an alleged
‘cultural’ or ‘racial’ identity over other identities and over non-identity-based concerns; on this see K. Anthony Appiah and Amy Gutmann, Color Conscious: The Political Morality of Race (Princeton, NJ: Princeton University Press, 1996), and Susan Moller Okin, with respondents, Is Multiculturalism Bad for Women? (Princeton, NJ: Princeton University Press, 1999).
† Similarly, dedicated activists working for global NGOs (such as OXFAM, Amnesty International, Me´decins sans Frontières, Human Rights Watch, and others) explicitly focus on affiliations and associations that cut across national boundaries.
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t h e i d e a o f j u s t i c e constitutionally created rights guaranteed for specified people (such as American or French citizens); for example, the human right of a person not to be tortured or subjected to terrorist attacks is affirmed independently of the country of which this person is a citizen, and also is quite irrespective of what the government of that country – or any other – wants to provide or support.
In overcoming the limitations of ‘exclusionary neglect’, use can be made of the idea of open impartiality embedded in a universalist approach, of the kind that relates closely to Smith’s concept of the impartial spectator. That broad framework of impartiality makes it particularly clear why considerations of basic human rights, including the importance of safeguarding elementary civil and political liberties, need not be contingent on citizenship and nationality, and may not be institutionally dependent on a nationally derived social contract.
Further, there is no need to presume a world government, or even to invoke a hypothetical global social contract. The ‘imperfect obligations’ associated with the recognition of these human rights can be seen as falling broadly on anyone who is in a position to help.*
The liberating role of open impartiality allows different types of unprejudiced and unbiased perspectives to be brought into consideration, and encourages us to benefit from the insights that come from differently situated impartial spectators. In scrutinizing these insights together, there may well be some common understanding that emerges forcefully, but there is no need to presume that all the differences arising from distinct perspectives can be settled similarly. As was discussed earlier, systematic guidance to reasoned decisions can come from incomplete orderings that reflect unresolved conflicts. Indeed, the recent literature in ‘social choice theory’, which allows ‘relaxed’
forms of outcomes (such as partial orderings), has made clear, social judgements are not rendered useless or hopelessly problematic just because the evaluative process leaves many pairs unranked and many conflicts unsettled.18
For the emergence of a shared and useful understanding of many substantive issues of rights and duties (and also of rights and wrongs)
* These issues will be more fully discussed later, in Chapter 17, ‘Human Rights and Global Imperatives’.
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c l o s e d a n d o p e n i m p a r t i a l i t y there is no need to insist that we must have agreed complete orderings or universally accepted full partitions of the just, strictly separated from the unjust; for example, a common resolve to fight for the abolition of famines, or genocide, or terrorism, or slavery, or untouchability, or illiteracy, or epidemics, etc. does not require that there be a similarly extensive agreement on the appropriate formulae for inheritance rights, or income tax schedules, or levels of minimum wages, or copyright laws.
The basic relevance of the distinct perspectives – some congruent, some divergent – of the people of the world (diversely diverse as we human beings are) is part of the understanding that open impartiality tends to generate. There is nothing defeatist in this recognition.
i n c l u s i o n a r y i n c o h e r e n c e a n d f o c a l g r o u p p l a s t i c i t y
The fact that the members of the focal group have a status in the contractarian exercise that non-members do not enjoy creates problems even when we confine our attention to one society –
or one
‘people’ – only. The size and composition of the population may alter with public policies (whether or not they are dedicated ‘population policies’) and the populations can vary even with the ‘basic structure’
of the society. Any rearrangement of economic, political or social institutions (including such rules as the ‘difference principle’) would tend to influence, as Derek Parfit has illuminatingly argued, the size and composition of the group that would be born, through changes in marriages, mating, cohabitation and other parameters of reproduction.19 The focal group that would be involved in the choice of the
‘basic structure’ would be influenced by that choice itself, and this makes the ‘closing’ of the group for closed impartiality a potentially incoherent exercise.
To illustrate this problem of group plasticity, suppose there are two institutional structures, A and B, that would yield, respectively, 5 million and 6 million people. They could, of course, be all different people, but to show how difficult the problem is even with the most favourable assumptions, let us assume that the 6 million we are talking about include all the same 5 million people and then another million 145
t h e i d e a o f j u s t i c e more. Who, we can now ask, are included in the original position in which social decisions are made which would inter alia affect the choice between A and B and thus influence the size and composition of the respective population groups?
To avoid this difficulty, suppose we take instead the larger group of 6 million people as the focal group who are included in the original position, and suppose also that it turns out that the institutional structure chosen in the corresponding original position is A, leading to an actual population of 5 million people. But then the focal group was wrongly specified. We can also ask: how did the non-existent –
indeed, never existent – extra one million people participate in the original position? If, on the other hand, the focal group is taken to be the smaller number of 5 million people, what if the institutional structure chosen in the corresponding original position is B, leading to an actual population of 6 million people? Again, the focal group would turn out to be wrongly specified. The additional one million people, then, did not participate in the original position, which would have decided the institutional structures that would extensively influence their lives (indeed not just whether they are to be born or not, but also other features of their actual lives). If the decisions taken in the original position influence the size and composition of the population, and if the population size and composition influence the nature of the original position or the decisions taken there, then there is no way of guaranteeing that the focal group associated with the original position is coherently characterized.
The foregoing difficulty applies even when we consider the so-called
‘cosmopolitan’ or ‘global’ version of the Rawlsian ‘justice as fairness’, including all the people in the world in one large contractual exercise (as proposed, for example, by Thomas Pogge and others). The population plasticity problem would apply no matter whether we consider one nation or the entire world population.
However, when the Rawlsian system is applied to one particular
‘people’ in a larger world, there are further problems. In fact, the dependence of births and deaths on the basic social structure has some parallel also in the influence of that structure on the movements of people from one country to another. This general concern has some similarity with one of David Hume’s grounds for scepticism about the 146
c l o s e d a n d o p e n i m p a r t i a l i t y conceptual relevance as well as the historical force of ‘the original contract’, already proposed in his own time:
The face of the earth is continually changing, by the increase of small kingdoms into great empires, by the dissolution of great empires into smaller kingdoms, by the planting of colonies, by the migration of tribes . . . Where is the mutual agreement or voluntary association so much talked of?20
However, the point at issue, in the present context, is not only –
indeed, not primarily – that the size and composition of the population is continually changing (important though this problem is), but that these changes are not independent of the basic social structures that are meant to be arrived at, in contractual reasoning, through the original position itself.
We must, however, examine further whether the dependence of focal group on the basic social structure is really a problem for Rawlsian justice as fairness. Does the focal group actually have to determine the basic social structure through the corresponding original position?
The answer, of course, is straightforwardly yes, if the parties to the original position are meant to be exactly the focal group (that is, all
– and only – the members of the polity or society). But sometimes Rawls speaks of ‘the original position’ as ‘simply a device of representation’.21 It might, thus, be tempting to argue that we do not have to assume that everyone in the society or polity has to be a party to the original contract, and it could be argued that, therefore, the dependence of the focal groups on the decisions taken in the original position need not be a problem.
I do not think that this is an adequate rebuttal of the problem of inclusionary incoherence for at least two reasons. First, Rawls’s use of the idea of ‘representation’ does not, in fact, amount to marshalling a wholly new set of people (or phantoms) as parties to the original position, different from the actual people in that polity. Rather, it is the same people under the ‘veil of ignorance’ who are seen as
‘representing’ themselves (but from behind ‘the veil’). Rawls explains this by saying: ‘This is expressed figuratively by saying that the parties are behind a veil of ignorance. In sum, the original position is simply a device of representation’ ( Collected Papers, p. 401). Indeed, Rawls’s justification of the need for a contract, which invokes (as was noted 147
t h e i d e a o f j u s t i c e earlier) ‘an undertaking people are giving’, indicates concrete participation (albeit under the veil of ignorance) of the very people involved in the original contract.22
Second, even if the representatives were to be different people (or imagined phantoms), they would have to represent the focal group of people (for example, through the veil of ignorance of possibly being any member of the focal group). So the variability of the focal group would now be reflected in – or transformed into – the variability of the people whom the representatives represent in the original position.*
This would not be much of a problem if, first, the size of the population did not make any difference to the way the basic structure of the society could be organized (complete scale invariance), and second, every group of individuals was exactly like every other in terms of its priorities and values (complete value invariance). Neither is easy to assume without further restrictions in the structure of any substantive theory of justice.† Group plasticity, therefore, does remain a problem for the exercise of closed impartiality, applied to a given focal group of individuals.
* To forestall a possible line of response, I should emphasize that this is not the same problem as the difficulty of representing members of the future generation (seen as a fixed group). There is, to be sure, a problem there too (for example, about how much can be assumed about the future generations’ reasoning since they are not here yet), but it is nevertheless a different issue. There is a distinction between the problem of what can be presumed about the agreement of the future generations (seen as a fixed group) to be represented, and the impossibility of having a fixed group to be represented, in choosing the basic structure of the society when the set of actual persons itself varies depending on the choice of that structure.
† It is also important to avoid a misunderstanding, which I have already encountered in trying to present this argument (which was also contained in my paper, ‘Open and Closed Impartiality’, 2002), that takes the form of arguing that differing populations cannot make any difference
to the Rawlsian original position, since every individual is exactly like any other under the ‘veil of ignorance’. The point to note is that even though the ‘veil of ignorance’ makes different individuals within a given group ignorant of their respective interests and values (making everyone much the same in the as if deliberative exercise for a given group), it does not, by itself, have any implication whatever in making different groups of individuals have exactly the same cluster of interests and values. More generally, to make the exercise of closed impartiality fully independent of the size and composition of the focal group, the substantive reach of that exercise has to be severely impoverished.
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c l o s e d a n d o p e n i m p a r t i a l i t y We must, however, also ask whether the Smithian approach of the impartial spectator is not similarly troubled by incongruity arising from group plasticity, and if not, why not. It is not, in fact, similarly troubled precisely for the reason that the impartial spectator need not come from the given focal group. Indeed, Smith’s ‘abstract and ideal spectator’ is a ‘spectator’ and not a ‘participant’ in any exercise like a group-based contract. There is no contracting group, and there is no insistence even that the evaluators must be congruent with the affected group. Even though there remains the very difficult problem of how an impartial spectator would go about deciding on such issues as variable population size (an ethical issue of profound complexity),*
the problem of incoherence and incongruity in ‘inclusionary closure’
in the contractarian exercise does not have an immediate analogue in the case of the impartial spectator.
c l o s e d i m p a r t i a l i t y
a n d
p a r o c h i a l i s m
That closed impartiality in the form of the original position can incarcerate the basic idea – and the principles – of justice within the narrow confines of local perspectives and prejudices of a group or a country was discussed earlier. To that discussion I want to add three particular points here.