Distributive justice, state coercion, and autonomy

Philosophy and Public Affairs

Volumn 30, Issue 3, 2001, Pages 257-296

  Blake, Michael ^a  

^a NONE

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EID: 52849107991     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2001.00257.x     Document Type: Article

References (60)

1. This image is borrowed from Joseph Carens, "Aliens and Citizens: The Case for Open Borders," in Will Kymlicka, ed., The Rights of Minority Cultures (Oxford: Oxford University Press, 1995), p. 332.
2. Ronald Dworkin's idea of "associative obligations," as well as Richard Miller's idea of legitimate patriotic concern, take this form. See Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), pp. 195-205;
3. and Miller, "Cosmopolitan Respect and Patriotic Concern," Philosophy & Public Affairs 27, no. 3 (1998): 202-24.
4. See Aristotle, Nichomachean Ethics, book II, chap. 6 (1106a36-b7).
5. See also Amartya Sen, Inequality Re-Examined (New York: Russell Sage, 1992).
6. I would note, as a further complication, that many - if not most - attempts to justify a deviation from an impartial principle end up justifying that partiality based upon some other impartial principle. See, for example, Robert Goodin, "What Is So Special About Our Fellow Countrymen?" Ethics 98 (July 1988): 663-86, which justifies a local preference based upon the globally beneficial consequences of such a preference.
7. I should note, however, that although these borders are taken for granted in this stage of the inquiry, we can still ask two further questions about the division of the world into states: First, what conditions would have to obtain such that this division into states could be justifiable to all? Second, what principles of nonideal theory would have to be developed to govern the use of secession as a remedy for certain forms of injustice? An account of secession might therefore be developed from some considerations introduced in this article. Principles dealing with immigration might be developed in a like manner. For an sketch of what such an account of immigration might look like, see my entry on "Immigration," in Christopher Wellman and R. G. Frey, eds., Blackwell Companion to Applied Ethics (Oxford: Blackwell Publishers, forthcoming).
8. Anthony Appiah, "Constitutional Patriots," in Joshua Cohen, ed., For Love of Country (Boston: Beacon Press, 1996), pp. 21-29.
9. I would also insist, further, that both noninstitutional and institutional forms of ideal theory exist; the mere fact of accepting political institutions does not render a theory nonideal. All theorizing requires us to accept some aspects of the world as theoretical premises for analysis; the assumptions can be as thin as the fact of moderate scarcity, or as substantive as the assumption of distributed sovereignty. But the question of what principles constrain state action assuming full compliance and an absence of catastrophic resource shortfall is quite distinct from the question of how to guide state action when human wills or natural conditions fall radically short. I would reserve the term "nonideal theory" for the latter sort of question, and insist that it is possible to do ideal theory of an institutional sort. Indeed, I think ideal theory of such a sort is the most likely to give us guidance in the real world; it does this not by accepting nonideal conditions, but by showing us how our institutions might be justified under ideal circumstances.
10. I would also close this section by noting that I assume, for purposes of the present article, that the set of people bound under the territorial reach of a state's laws and the set of that state's citizens are equivalent. They are not, of course, and I hope to examine elsewhere the consequences of dropping this assumption. For the present, however, I will use this assumption for reasons of explanatory ease.
11. John Stuart Mill, for instance, grounds a concern for autonomy in utilitarian premises, whereas such thinkers as Martha Nussbaum derive this concern from Aristotelian grounds. See John Stuart Mill, On Liberty (1859) (Indianapolis: Hackett Publishing, 1978),
12. and Martha Nussbaum, "Non-Relative Virtues: An Aristotelian Approach," in Martha Nussbaum and Amartya Sen, eds., The Quality of Life (Oxford: Oxford University Press, 1993), pp. 224-69.
13. I do not say that they are totally beyond the reach of political life; the approach given here might argue for certain programs of education required to bring otherwise disabled persons up to autonomous functioning, for example. I am grateful to Debra Satz for pointing out the implications of such disabilities in the present context.
14. See Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), pp. 376-78;
15. see also Thomas Scanlon, "The Significance of Choice," in Stephen Darwall, ed., Equal Freedom (Ann Arbor The University of Michigan Press, 1995), pp. 39-104
16. . 12. Gerald Dworkin, "Is More Choice Better than Less?" Midwest Studies in Philosophy 7 (1982): 47-61;
17. and Scanlon, "The Significance of Choice."
18. John Rawls, Political Liberalism (New York: Columbia, 1993), p. 72. Rawls differentiates rational autonomy from full autonomy, by which the citizens of a political society are able to act from principles of justice that would be agreed to by rationally autonomous individuals. Since I want to concentrate for the moment on the demands of autonomy in the absence of political society, I will not discus full autonomy in the present context. I would note also that although Rawls develops a political liberalism unconnected to any comprehensive doctrine, and Raz develops a comprehensive perfectionism based upon his respect for autonomy, they are in agreement on autonomy as a basic value. I view Raz's perfectionism as separable from his defense of autonomy, and Rawls's principles ultimately rest upon an extremely similar notion of human autonomy, even if this latter is derived (in Rawls's later writings) from ideals implicit in the popular culture. I regret that I do not have time to explore these matters in any greater detail at present.
19. My approach to coercion is heavily influenced by Alan Wertheimer, Coercion (Princeton: Princeton University Press, 1987).
20. See also Raz, The Morality of Freedom, p. 148.
21. Raz, The Morality of Freedom, p. 419.
22. See Herbert Morris, "Persons and Punishment," The Monist 52 (October 1986): 475-501;
23. Jeffrie Murphy, "Marxism and Retribution," Philosophy & Public Affairs 2, no. 3 (1973): 217-43.
24. See Thomas Scanlon, "Contractarianism and Utilitarianism," in Amartya Sen and Bernard Williams, eds., Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982), pp. 103-28.
25. See also Scanlon, What We Owe to Each Other (Cambridge: Harvard University Press, 1999).
26. Gregg v. Georgia, 428 U.S. 153 (1976).
27. Coter v. Georgia, 433 U.S. 584 (1977).
28. It may also explain the conviction of some theorists of punishment that purely deterrent punishment is never justified, although I will not explore this idea here. See Murphy, "Marxism and Retribution," for a good account of this line of argumentation.
29. Trop v. Dulles, 356 U.S. 86, 100 (1958).
30. I would note, in passing, that I am not saying that a more "cruel" form of punishment - in the ordinary sense of a more painful or humiliating form of punishment - is necessarily a greater violation of autonomy than a less "cruel" form. I am saying that one way of understanding the Supreme Court's vision of cruel and unusual punishment is with reference to the idea of autonomy. Those forms of punishment that cannot be justified to citizens understood as autonomous agents are comprehensible as cruel and unusual in this latter sense. Thus, an unduly painful form of execution might constitute a violation of autonomy, but not because it is "cruel" in the ordinary sense of the word, but rather because this particular form of punishment could not be justified to free and equal citizens. I am grateful to an anonymous editor at Philosophy & Public Affairs for urging me to be clearer on this matter.
31. See H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), pp. 28-29.
32. Michael D. Danekan, "Moral Reasoning and the Quest for Legitimacy," 43 American University Law Review (1993): 49.
33. Shelley v. Kraemer, 334 U.S. 1 (1948).
34. Anthony Kronman, "Contract Law and Distributive Justice," 89 Yale Law Journal (1980): 472. I disagree with Kronman on one central point; he argues that the forms of justification open to a liberal are limited to notions such as fairness and economic egalitarianism. I think, in contrast, that we ought to begin with our more minimal idea of autonomy; this inquiry will end up with an economically egalitarian content in some contexts, but such an outcome will be the result of our moral inquiry, rather than (as Kronman has it) the beginning.
35. Robert M. Cover, "Violence and the Word," 95 Yale Law Journal (1986): 1601. Cover notes that law is always played on a field of violence and death; if this is most apparent in the criminal law, "all law which concerns property, its use and its protection, has a similarly violent base" (n.16).
36. This way of looking at the private law may remind some readers too much of John Austin, whose coercion-based philosophy of law was convincingly disputed by H.L.A. Hart. I would note here only that Austin's question and my own differ to such a degree that my use of coercion may not be susceptible to the same criticisms as his own. See H.L.A. Hart, The Concept of Law,
37. and John Austin, The Province of Jurisprudence Determined, 5th ed. (1885), ed. Wilfred E. Rumble (Cambridge: Cambridge University Press, 1995).
38. See, for example, G. A. Cohen, "Where the Action Is: On the Site of Distributive Justice," Philosophy & Public Affairs 26, no. 1 (1997): 3-30.
39. J. Donald Moon and others have pressed on me the objection that the entire international system might be based upon coercion - seen, for instance, in the coercive exclusion of would-be immigrants at the border. This may be correct, but it is important to remember that each distinct form of coercion requires a distinct form of justification. The refusal of entry to a would-be member may or may not be justifiable; the form such justification would take, however, would be significantly different from that offered to a present member for the web of legal coercion within which she currently lives. The mere fact that exclusion is coercive does not erase the distinction between prospective and current membership. Only the latter, I argue, gives rise to a legitimate concern for relative deprivation.
40. It is worthwhile to note, in this connection, that real property in the United States must be - in theory, if not in legal practice - traced back to an original grant from the sovereign for it to be legally cognizable as property.
41. We may notice, now, that I have begun to talk directly about property and entitlements, which seems a more expansive set of concerns than I was earlier willing to allow in the context of autonomy. There is, I think, a good reason for this. Our earlier consideration was the identification of a given situation as violating or respecting autonomy. In this, we noted, there was no necessary concern - above a certain baseline - for the size of our holdings of goods or the number of options realistically open to us. Our present focus, however, is on the justification of a situation already identified as coercive, and therefore as violative of the liberal principle of autonomy. In this focus, I think, more expansive criteria may be employed; we can give and withhold our consent based on considerations that, in themselves, are not necessarily implicated in every discussion of autonomy. In deciding whether to accept a coercive regime defining returns to various positions, that is, we might well examine that proposal in terms of its effects on our resources and economic holdings. The private law is coercive, and it has consequences for the allocation of goods; the former fact makes the private law stand in need of justification, while the latter provides the means by which our consent - the method of our justification - might be given or withheld.
42. See John Rawls, The Law of Peoples (Cambridge: Harvard University Press, 1999), for Rawls's own views of the implications of contractualism abroad.
43. See, for instance, John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), p. 343: "It is generally agreed that extorted promises are void ab initio. But similarly, unjust social arrangements are themselves a kind of extortion, even violence, and consent to them does not bind. The reason for this condition is that the parties in the original position would insist upon it." Rawls is here, of course, not explicit about the fact that domestic law is coercive - this is, however, the interpretation he gives to his earlier account by the time of Political Liberalism.
44. Rawls, Political Liberalism, 136.
45. John Rawls, "The Law of Peoples," in On Human Rights, ed. Stephen Shute et al. (New York: Basic Books, 1993), 41-82.
46. See also Rawls, The Law of Peoples.
47. Rawls, Political Liberalism, p. 217.
48. Rawls, Political Liberalism, p. Ibid., p. 77.
49. Rawls, Political Liberalism, p. Ibid., pp. 61-62.
50. Rawls, Political Liberalism, p. Ibid., p. 264.
51. Rawls, "The Law of Peoples," 220-21, n. 2.
52. See Robert Goodin, "What is So Special about our Fellow Countrymen?"
53. The story here is borrowed in part from James Buchanan, "A Two-country Parable," in Warren F. Schwartz, ed., Justice in Immigration (Cambridge: Cambridge University Press, 1995), pp. 63-66.
54. But see Charles Beitz, "Cosmopolitan Ideals and National Sentiment," Journal of Philosophy 80 (October 1983): 591-600.
55. See Charles Beitz, Political Theory and International Relations (Princeton: Princeton University Press, 1973),
56. and Thomas Pogge, Realizing Rawls (Ithaca: Cornell University Press, 1989).
57. Brian Barry, "Humanity and Justice in Global Perspective," Nomos 24: Ethics, Economics and the Law, ed. J. R. Pennock and J. W. Chapman (New York: Harvester Wheatsheaf, 1982), p. 233: "Trade, if freely undertaken . . . is not, it seems to me, the kind of relationship that gives rise to duties of fair play. . . . Trade in pottery, ornamentation, and weapons can be traced back to prehistoric times, but we would hardly feel inclined to think of, say, the Beaker Folk as forming a single cooperative enterprise with their trading partners. No more did the spice trade unite east and west."
58. See Barbara Crossette, "Half the World Lacks Sanitation, Says UNICEF," New York Times, July 23, 1997, A9.
59. The denial of the vote in this way, I think, might well be understood as a practice of marginalization - a symbolic statement that the individual denied is not worthy of autonomous deliberation and must accept the values and principles of others in an uncritical way. This notion of the symbolic importance of the vote is discussed in greater detail in Judith Shklar, American Citizenship (Cambridge: Harvard University Press, 1991).
60. A similar idea is expressed by Jeremy Waldron, "Special Ties and Natural Duties," Philosophy & Public Affairs 22, no. 1 (1993): 3-30. Waldron introduces an idea of range-limited duties as implications of natural duties - as, for example, citizens have distinct duties towards only their own state, which result from a general and natural duty to support just institutions. This dovetails nicely with my own idea that an impartial principle can have distinct implications in distinct contexts. Where Waldron and I differ is primarily in theoretical focus. His focus is on the obligation of the citizen toward the state while mine is on what the state must do toward the citizen - and the noncitizen - for its exercise of coercive power to be justified.