Associative duties, global justice, and the colonies

Philosophy and Public Affairs

Volumn 37, Issue 2, 2009, Pages 103-135

  Ypi, Lea ^a   Goodin, Robert E ^b   Barry, Christian ^b  

^a NUFFIELD COLLEGE   (United Kingdom)

^b AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

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[No Author keywords available]

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EID: 65549103805     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2009.01152.x     Document Type: Article

References (73)

1. Maybe any association - a glee club, or whatever - gives rise to associative duties of some kind. But sovereign authority with pervasive impact (of a Cooperative or Coercive sort, as we shall go on to discuss) gives rise to particularly strong associative duties of a particularly political sort, traveling under the name of "justice." Associations such as corporations do not typically do so, except perhaps in "company towns" where the company (e.g., the British East India Company) exercises something very like sovereign authority, pervasively impacting the lives of those subject to it.
2. For a similar thought developed in a very different way, see Rogers Smith, "The Principle of Constituted Identities and Obligation to Include, "Ethics & Global Politics 1 (2008): Unpaginated.
3. While duties of humanity may be "less demanding"(in the sense of less costly for duty-holders to discharge), they may also be "more urgent" than, and therefore take moral priority over, duties of justice. T. D. Campbell, "Humanity Before Justice, " British Journal of Political Science 4 (1974): 1-16
4. See, for example, Michael Blake, "Distributive Justice, State Coercion, and Autonomy, "Philosophy & Public Affairs 30 (2001): 257-96; Andrea Sangiovanni, "Global Justice, Reciprocity, and the State, "Philosophy & Public Affairs 35 (2007): 3-39.
5. Ronald Dworkin, Law's Empire (Cambridge, Mass.: Harvard University Press, 1986), pp. 195-206. "Associative duties"are a subspecies of "agent-relative duties"that figure so largely in Samuel Scheffler's Rejection of Consequentialism (Oxford: Clarendon Press, 1982); see further Scheffler, Boundaries and Allegiances (Oxford: Oxford University Press, 2001).
6. Paradigmatically, as fellow citizens; by extension, perhaps, as permanent residents.
7. Thus Nagel, for example, writes: "Justice is something we owe through our shared institutions only to those with whom we stand in a strong political relation. It is... an associative obligation... Socioeconomic justice... depends on positive rights that we do not have against all other persons or groups, rights that arise only because we are joined together with certain others in a political society under strong centralized control. It is only from such a system, and from our fellow members through its institutions, that we can claim a right to... amelioration through public policy of unfairness in the distribution of social and economic goods." Thomas Nagel, "The Problem of Global Justice, "Philosophy & Public Affairs 33 (2005): 113-47
8. One can of course draw on both accounts in developing a conception of associative duties, treating the existence of each or both Coercion and Cooperation as necessary and/or sufficient conditions for such duties.
9. Arash Abizadeh, "Cooperation, Pervasive Impact and Coercion: On the Scope (Not Site) of Distributive Justice, "Philosophy & Public Affairs 35(2007): 318-58
10. Henry Sidgwick, The Methods of Ethics, 7th ed. (London: Macmillan, 1907), p. 248. Dworkin, Law's Empire, pp. 196-97. Nagel, "Problem of Global Justice,"pp. 128-29, 133. John Horton, "In Defence of Associative Political Obligations, "Political Studies 54 (2006): 427-43
11. Pace H.L.A. Hart, "Are There Any Natural Rights? "Philosophical Review 64 (1955): 175-91, at p. 185, and John Rawls, "Justice as Fairness, "Philosophical Review 67 (1958): 164-94, at p. 17. Undeniably, some associative memberships and corresponding associative duties are voluntarily assumed. The question is whether or not what morally matters about them can be reduced to some further feature (like "vulnerabilities" thus engendered); cf. Robert E. Goodin, Protecting the Vulnerable (Chicago: University of Chicago Press, 1985), and Scheffler, Boundaries and Allegiances, esp. chap. 6.
12. Henry Sidgwick, The Elements of Politics (London: Macmillan, 1897), chap. 14, sec. 2. Josiah Royce, The Philosophy of Loyalty (New York: Macmillan, 1908). Andrew Oldenquist, "Loyalties, "Journal of Philosophy 79 (1982): 173-93. Michael Walzer, Spheres of Justice (New York: Basic, 1983), pp. 31-63. David Miller, On Nationality (Oxford: Oxford University Press, 1995), esp. chap. 3. Alasdair MacIntyre, "Is Patriotism a Virtue?" Lindley Lecture, University of Kansas, March 26, 1984. Martha C. Nussbaum, "Patriotism and Cosmopolitanism," in For Love of Country (Boston: Beacon Press, 1996), pp. 2-20. Scheffler, Boundaries and Allegiances, esp. chap. 2-6.
13. See, e.g., Samuel Freeman, "The Law of Peoples, Social Cooperation, Human Rights and Distributive Justice, "Social Philosophy and David A. Reidy "Rawls on International Justice: A Defense " Political Theory Policy 23 (2006): 29-68, at p. 37
14. Thus Nagel, "Problem of Global Justice,"pp. 128-30.
15. E.g., in their different ways, Sangiovanni, "Global Justice, Reciprocity, and the State,"pp. 3-39; and Mathias Risse, "What to Say about the State, "Social Theory and Practice 32 (2006): 671-98.
16. Michael Blake, "Distributive Justice,"pp. 271, 284, 289. Nagel agrees: "We are required to accord equal status to anyone with whom we are joined in a strong and coercively imposed political community... There is a difference between voluntary association, however strongly motivated, and coercively imposed collective authority... Political institutions are different, because adherence to them is not voluntary.... An institution that one has no choice about joining must offer terms of membership that meet a higher standard... [O]nce the state exists, we are in a new moral situation where the value of equality has purchase"(Nagel, "Problem of Global Justice,"pp. 133, 140). The relevance of coercion in grounding duties of robust distributive justice had earlier been emphasized by Richard W. Miller in "Cosmopolitan Respect and Patriotic Concern, "Philosophy & Public Affairs 27 (1998): 202-24, at pp. 217-18. (1998): 202-24, at pp. 217-18. Blake's version was offered in direct response (pp. 288-89) to a critique of the Cooperation Account in Robert E. Goodin, "What's So Special about Our Fellow Countrymen?" Ethics 98 (1988): 663-86; for purposes of this article, we take no stand on the merits of the Coercive or Cooperative Accounts.
17. Michael Blake, "Distributive Justice,"p. 284 (emphasis added).
18. Michael Blake, "Distributive Justice,"p. 280.
19. Thus Nagel, "Problem of Global Justice,"pp. 136-40.
20. Michael Blake, "Distributive Justice,"p. 265, talks about different kinds of coercion being or not being "potentially justifiable through a concern for equality in distributive shares."
21. For the sorts of reasons given by: Joshua Cohen and Charles Sabel, " Extra Rempublicam ulla Justitia?" Philosophy & Public Affairs 34 (2006): 147-75; Abizadeh, "Cooperation, Pervasive Impact, and Coercion" Christian Barry and Laura Valentini, "Egalitarian Challenges to Global Egalitarianism: A Critique," Review of International Studies, forthcoming 2009; and Lea Ypi, "On the Confusion between Ideal and Non-ideal in Recent Debates on Global Justice," Political Studies, forthcoming.
22. In a phrase Blake applies purely to the domestic realm; "Distributive Justice,"p. 291.
23. Burke, "Speech on American Taxation,"Works, vol. 2, pp. 435-37; quoted in George Cornewall Lewis, An Essay on the Government of Dependencies (Oxford: Clarendon Press, 1841), p. 74.
24. The Colonial Laws Validity Act, 28 & 29 Vic. c. 63, sec. 2, enacted without debate in 1865, formalized a long-standing presumption in this respect; A. V. Dicey, Law of the Constitution, 7th ed. (London: Macmillan, 1908), p. 101; and Lewis, Government of Dependencies, p. 331.
25. Even under ostensibly the assimilationist French colonial ideology, only a very small proportion of people in the colonies ever actually became French citizens.
26. Even in federal systems the national government's laws are supposed to apply equally to all, even if provincial governments are permitted to legislate differently on topics within their sphere of authority.
27. Travelers who are just passing through, for example, are exempt on the grounds they are not "pervasively impacted"by that legislature's edicts.
28. See John Plamenatz, On Alien Rule and Self-government (London: Longman, 1960). Avishai Margalit and Joseph Raz, "National Self-determination, "Journal of Philosophy 87 (1990): 439-61.
29. As argued by A. J. Julius, "Nagel's Atlas, "Philosophy & Public Affairs 34 (2006): 176-92, at p. 183.
30. The 1946 Constitution of the Fourth Republic gave this status to Guadeloupe, Martinique, French Guiana, and Réunion.
31. See Patrick Wilcken's amusing telling of this story, Empire Adrift-The Portuguese Court in Rio de Janeiro 1808-21 (London: Bloomsbury, 2004).
32. For an overview, see H. P. Morris, "The Framework of Indirect Rule in East Africa,"in Indirect Rule and the Search for Justice, ed. H. F. Morris and James S. Read (Oxford: Clarendon Press, 1972), pp. 4-40.
33. James Crawford, The Creation of States in International Law, 2nd ed. (Oxford: Clarendon Press, 2006), pp. 282-328, esp. pp. 321-23, terms these "suzerain"relations, which he treats as a special case of protectorates more generally.
34. Assimilationist though French colonial policy was, there was "little alternative to the use of existing political authorities as a means of governing their vast African empires"under its Code de L'indigénat; Michael Crowder, "Indirect Rule-French and British Style, "Africa 34 (1964): 197-205, at p. 197.
35. Michael Lipsky, Street Level Bureaucracy (New York: Russell Sage, 1980).
36. "The king of Prussia is the sovereign Prince of Neufchatel in Switzerland, but this does not unite that principality to his other States... "Vattel points out, to illustrate how "two sovereign States may... be subject to the same prince without one being dependent on the other; and each retains all the rights of a free and sovereign Nation."Emmerich de Vattel, The Law of Nations, trans. Charles G. Fenwick (Washington, D.C.: Carnegie Institution, 1916), chap. 1, § 9.
37. Maybe the British Dominions with Responsible Government-in the 1931 Statute of Westminster, 22 & 23 Geo. V c. 4, Australia, Canada, the Irish Free State, New Zealand, Newfoundland, South Africa-are examples of that. Section 4 of that Statute stipulates that "no Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend... to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested and consented to the enactment thereof."And although the assent of the Governor on behalf of the Crown is required for enactments of legislatures in the Dominions to become law, "these assents are given almost as a matter of course" (Dicey, Law of the Constitution, p. 99).
38. There is the further question of how deeply the coercive power of the state reaches down into the society in some of these places. If colonial control does not extend beyond the capital, then peasants would not be pervasively impacted by the coercive power of the colonial state and hence no duties of distributive justice would on the associative account be owed to them (or by them to one another). There may be places like that, but they are atypical; James C. Scott, Weapons of the Weak (New Haven, Conn.: Yale University Press, 1985).
39. Michael Crowder, "Indirect Rule,"p. 198.
40. That much must be conceded even by those of us who do think it is nonetheless justified coercion and not at all like "forced labour"; cf. Robert Nozick, Anarchy, State and Utopia (Oxford: Blackwell, 1974), p. 169. Of course in the colonial period most people in the Mother Country, still more the colonies, would have paid no direct taxes, although they might still have been pervasively impacted by indirect taxes. John Stuart Mill, "Memorandum of the Improvements in the Administration of India During the Last Thirty Years"[1858], in Writings on India, ed. John M. Robson, Martin Moir, and Zawahir Moir (Toronto: University of Toronto Press, 1990), pp. 91-160, at p. 106, remarks that the "tax on salt...is, speaking generally, the only that which the labouring ryot of India pays."Mill further observes "that, as regards landholders, in India every revenue officer is also, in the most important sense of the word, a judicial officer"responsible for "investigating and ascertaining all titles to land"with "the adjudication so performed...[having]the force of a judicial decision"(ibid., p. 94).
41. Another form of "puppet"might be ostensibly private corporations, like the British or Dutch East India Companies, through which the Mother Country might rule a colony at arm's length. Everything said below about governments-as-puppets can be translated fairly straightforwardly to the case of corporations-as-puppets.
42. For a larger discussion of the different definitions of coercion, see Alan Wertheimer, Coercion (Princeton, N.J.: Princeton University Press, 1987).
43. Colin Leys, Underdevelopment in Kenya: The Political Economy of Neo-colonialism, 1964-1971 (London: Heinemann, 1975), p. 9.
44. John Flint, "Planned Decolonization and Its Failure in British Africa, "African Affairs 82(1983): 389-411.
45. These include Nagel's. In a footnote he addresses the question of "whether on the political conception justice is owed to the subjects of regimes that are imposed from outside, such as colonial regimes... I believe the answer... is yes... [I]f a colonial...power claims political authority over a population, it purports not to rule by force alone. It is providing and enforcing a system of law that those subject to it are expected to uphold as participants, and which is intended to serve their interests even if they are not its legislators. Since their normative engagement is required, there is a sense in which it is being imposed in their name"(Nagel, "Problem of Global Justice,"p. 129, n. 14).
46. This notion of social cooperation is identified as relevant for grounding duties of distributive justice by Thomas Pogge, Realizing Rawls (Ithaca, N.Y.: Cornell University Press, 1989), p. 21. Similar claims were advanced by Charles R. Beitz in his Political Theory and International Relations, 2d ed. (Princeton, N.J.: Princeton University Press, 1999).
47. Sangiovanni, "Global Justice, Reciprocity, and the State,"p. 19.
48. Michael Crowder, "The Second World War: Prelude to Decolonisation in Africa,"in The Cambridge History of Africa, ed. Desmond J. Clark, J. D. Fage, Roland Anthony Oliver, and A. D. Roberts (Cambridge: Cambridge University Press, 1984), vol. 8, pp. 21 ff.
49. See, for example, Blake's Borduria and Syldavia cases in "Distributive Justice," pp. 290-94. Or likewise the relationship between the "beaver folk" and "fisher folk" in Brian Barry's argument that trade alone does not bring about a cooperative scheme of a kind that is sufficient to trigger duties of distributive justice; "Humanity and Justice in a Global Perspective," p. 233. But also John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999), pp. 117-18; and David Miller, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007), pp. 68-75.
50. Sangiovanni, "Global Justice, Reciprocity, and the State," p. 19.
51. For this line of critique against Nagel's use of the cooperative account, see Abizadeh, "Cooperation, Pervasive Impact and Coercion,"pp. 348-50; and A. J. Julius, "Nagel's Atlas,"pp. 179-83. The same can be said of legalistic analyses of associative duties according to which we owe duties of justice (distributive or otherwise) only to those with the legal status of "citizens."If there are no independent criteria of citizenship, it is simply too easy to avoid duties of robust distributive justice by withholding citizenship from those toward whom we do not want to incur such duties. That is true of any criteria of citizenship that do not perfectly track what morally matters in grounding associative duties (patterns of cooperation of a certain sort on the Cooperation Account or of coercion of a certain sort on the Coercion Account).
52. Among other things, such an account of justice would give people incentives to maintain exploitative and oppressive terms of interaction with one another to avoid being burdened with demanding associative duties, among them duties of robust distributive justice. Thomas Pogge, " Loopholes in Moralities, "Journal of Philosophy 89 (1992): 79-98.
53. Alan Buchanan, Secession (Boulder, Colo.: Westview Press, 1991).
54. Clause 5 of the "Declaration on the granting of independence to colonial countries and peoples"[Declaration 1514 (XV), 14 Dec. 1960], Official Records of the General Assembly, Fifteenth Session, pp. 66-67.
55. Alan Buchanan, Secession, pp. 114-23.
56. C. E. Carrington, "Decolonization: The Last Stages, "International Affairs 38 (1962): 29-40
57. Alan Buchanan, Secession, p. 115.
58. This stylized example is loosely based on the case of Johns Manville, which applied for chapter 11 bankruptcy protections in 1982 when confronted with tort suits from workers with asbestosis.
59. Alan Buchanan, Secession, p. 120.
60. For a sympathetic treatment of the British Empire along these lines, see Niall Ferguson, Empire: The Rise and Demise of the British World Order and the Lessons for Global Power (New York: Basic Books, 2004). Some settler societies at least arguably showed a greater capacity for capitalist development than was common throughout the developing world. See Jairus Banaji, "Backward Capitalism, Private Accumulation, and Modes of Production, "Journal of Contemporary Asia (Stockholm) 3 (1973): 393-413.
61. The fact that contribution is not understood in individual but rather institutional terms is usually taken to mark the difference between the political association and a voluntary scheme for mutual advantage.
62. Stephen Krasner, "Sovereignty: An Institutional Perspective, "Comparative Political Studies 21(1998): 66-94. Studies 21 (1998): 66-94. Paul Pierson, Increasing Returns, Path Dependence and the Study of Politics, American Political Science Review 94 (2000): 251-68.
63. Kathleen Thelen, "Historical Institutionalism in Comparative Politics, "Annual Review of Political Science 2 (1999): 369-404, at p. 387. Stanley Engerman and Kenneth Sokoloff, "History Lessons: Institutions, Factor Endowments, and Paths of Development in the New World, "Journal of Economic Perspectives 14 (2000): 217-32, have argued that colonies' factor endowments influenced significantly the type of institutions developed in them during the colonial period. In some cases their institutions put these countries in positions to benefit from the industrial growth of the late eighteenth and nineteenth centuries. In others, particularly those (such as Brazil and the Caribbean) whose climate and soils were deemed by the colonizers (seeking always to optimize profits) to be well suited to the production and export of crops, institutions (such as large-scale slavery and grants of large land holdings) were created that led to very unequal societies with large numbers of poor and severely disadvantaged persons. These institutions have also made it very difficult for these societies to undertake reforms that would enhance their prospects for growth and achieve distributive justice domestically.
64. Paul Pierson, "Increasing Returns, Path Dependence and the Study of Politics,"p. 251. See further, Crisis, Choice and Change, ed. Gabriel A. Almond, Scott C. Flanagan, and Robert J. Mundt (Boston: Little, Brown, 1973).
65. Daron Acemoglu, Simon Johnson, and James Robinson, "The Colonial Origins of Comparative Development: An Empirical Investigation, "American Economic Review 91 (2001): 1369-401, at p. 1376, have argued, for example, that colonies in which Europeans settled (typically more sparsely populated and poorer) tended to develop better institutions than those in which they did not. In other places that were suited to setting up extractive industries they tended not to settle, finding it more profitable to exploit the existing population.
66. "The Colonial Origins of Comparative Development," p. 1376.
67. As noted above, the fact that some other factors (such as entrenched local elites) would or might have prevented such developments had colonialism not taken place does not show that colonialism did not prevent them. Had elites alone prevented such development, they and not the colonizers might plausibly be held responsible for the harms caused, but the harmful sequence that they would have set in motion was preempted (at least in part) by the colonial intervention. Cf. Michael Moore, "Causation and Responsibility, "Social Philosophy and Policy 16 (1999): 1-51; and Richard W. Wright, "Causation in Tort Law, "California Law Review 73 (1985): 1735-828.
68. This benefit need not be proportional to "how much" former members of the political association have contributed in individual terms, the appropriate principles may be defined according to some other method for the distribution of benefits and burdens.
69. See Joshua Cohen, "Minimalism about Human Rights: The Best We Can Hope For? "Journal of Political Philosophy 12 (2004): 190-213, at p. 198.
70. J. M. Finnis, "Revolutions and the Continuity of Law,"in Oxford Essays in Jurisprudence, 2nd series, ed. A.W.B. Simpson (Oxford: Clarendon Press, 1973), pp. 44-76, at pp. 52-53.
71. In the real world, of course, another alternative would be to "bootstrap a constitution"by first having a revolution to displace the previous colonial rulers, then convening a constitutional convention, and then getting enough other states to recognize the government constituted under that new constitution for it to be viable internationally. See Finnis, "Revolutions and the Continuity of Law"; and Crawford, Creation of States in International Law, chap. 15.
72. Note that the two unidirectional postcolonial duties mentioned above (the duty of rectification for violating self-determination, and the duty to pay unrequited debts incurred during colonialism) derive from a breach of duties of fair equality. Duties to right past wrongs are unidirectional now, only because and only insofar as duties of equality and fair reciprocity have been differentially violated in the past.
73. While we have - following much of the literature on global distributive justice - been talking mainly in terms of cash transfers, remember that in point of fact that may involve various other equality-promoting measures regarding trade, investment, and so on.