Global Justice in Complex Moral Worlds. Dilemmas of Contextualized Theories. (First Draft)

Veit Bader

Abstract

In this brief criticism I discuss the complexities of practical judgements on global justice and spell out important agreements with David Miller: global and special, particularly ‘national obligations’ are in serious tension; both simple ‘global egalitarianism’ and ‘domestic justice’ are morally counter-intuitive; and moral minimalism is the most promising theoretical and practical strategy. Complex moral theories, however, are confronted with three serious dilemmas: How to compare, measure, and weigh conflicting obligations? How to make global moral responsibilities really bite? How can the problem of an adequate allocation of global obligations best be addressed? As a consequence of his fairly traditional way of doing political philosophy Miller’s answers are very disappointing. I argue for a departure from the entrenched division of labour between moral or political philosophy and the social sciences. I opt for an institutional turn in political theory and for institutional pluralism. A multi-level and multi-layered institutionalist approach is more appropriate to realize the fulfilment of the Global Minimum in the real world. (165 words)

Key words: global justice; allocation of multiple responsibilities; contextualism and institutional pluralism.

Veit Bader: Department of Philosophy, University of Amsterdam.

Nieuwe Doelenstraat 15, 1012 CP Amsterdam;

David Miller and I had an earlier exchange in 2003 on national responsibility and global justice (Miller 2005, Bader 2005). For three reasons, my short article contains not just a repetition of sets. First, Miller has elaborated and refined his position (Miller 2006, 2007), second, my own position became even more minimalist in the mean time (Bader 2005a, 2007) and third and most important, we share a common approach, broadly speaking. In section 1, I spell out these agreements in more detail: the complexities of practical judgment in a complex, multi-level and multi-layered world are best addressed by contextualized moral theories. In section 2, I briefly discuss three crucial dilemmas inherent in all contextualized approaches: How to compare, measure, and weigh conflicting arguments and obligations? How to make global moral responsibilities really bite? How can the problem of an adequate allocation of global obligations best be addressed? In these regards, I find Miller’s treatment – as a consequence of his fairly traditional way of doing political philosophy – very disappointing. In the last section, hence, I point out the most important criticism of Miller’s version of contextualized philosophy and argue for a departure from the entrenched division of labour between moral or political philosophy and the social sciences, broadly understood. I opt for an institutional turn in political theory and for institutional pluralism. A multi-level and multi-layered institutionalist approach is more appropriate to realize the fulfilment of the Global Minimum in the real world.

1Practical Judgments in Complex Moral Worlds

Practical judgments on how to address problems of global poverty, insecurity, immigration and incorporation are complex in many regards. The first reason for this complexity concerns practical judgments generally, independent from the specific issues in this volume from which I use examples. (i) all practical or normative judgments (what we ought to do) contain, implicitly or explicitly, four different kinds of ought that I have called moral, ethical, prudential, and realist (Bader 1995, Bader/Engelen 2003). Moral arguments, strictly speaking, spell out what we owe to human beings as such, independent of all other qualifications, in our case, say, the fulfilment of basic needs or rights. Ethical arguments tell us what we owe to particular human beings with whom we share a specific ethos or ‘culture’ or ‘way of life’ (“ethical duties” (Miller 2003: 7), e.g. ‘national responsibilities’ for compatriots. Prudential arguments demonstrate to us that, whatever aims we want to achieve, we should do it in the most cost-efficient way, e.g. not wasting money in specific kinds of developmental aid. Realist arguments are of a specific negative kind and tell us what we should not do (because of counter-productive or even devastating effects), e.g. not fully and immediately open all borders (Bader 2005a: 351).Now I think that Miller and I agree that these arguments are not always reinforcing each other but may often conflict or are in serious tension with each other. Practical judgment, then, is the art of balancing, ‘all things considered’. (ii) If one focuses on moral reasoning, we have to deal with moral pluralism, i.e. the fact that our moral principles like freedom and equality often conflict with each other, e.g. free movement under recent conditions may be detrimental for ‘domestic equality’ and also not contribute to more global equality or to fighting poverty effectively. (iii) Moral principles and moral or legal rights are indeterminate or, better, under-determined, e.g. even the interpretation of basic rights is open and contested. (iv) Theoretical knowledge and ‘abstract theorizing’ may be particularly inept to address the complexity of actual situations, e.g. practical knowledge is urgently required for effective development aid. These are the four most important reasons why we urgently need contextualized theories of morality, whether we like it or not (Carens 2004), and I take it for granted that David and I agree at least with regard to the basics[1] although the specific type of contextualist theory (Bader 2004: 110-12) may widely diverge.

Discussing issues of ‘national’ and ‘global’ responsibilities or obligations we are confronted with a second source of complexity resulting from the fact that we live in worlds characterized by overlapping political entities (multi-level polities, from neighbourhood, municipality, province, state to supra-state polities like the EU and global institutions) and by overlapping – voluntary, non-voluntary and even involuntary – belongings to different kinds of associations, organizations, and groups. This results in a fairly complex picture of ‘obligations’ or ‘duties’ (Miller 2007: 4)[2] because our multiple, special relations clearly have an impact on our moral “outcome responsibilities” as well as on the allocation of our “remedial responsibilities” or, in my own language, on the different kinds of special duties, e.g. contractual, reparative and associational (based on family, kinship, social class, profession, gender, ‘race’, ethno-religious, national belonging or on membership in associations, organizations and polities (amongst them states)).[3] In my view, Miller still does not analyze the full picture. Instead, he deliberatively focuses his discussion (i) on states as polities, and (ii) on the ‘nation’ as a specific kind of ‘group’ or ‘community’ (2007: 100), which then are combined in ‘nation-states’ (‘compatriots’ are state-members (citizens) and belong to a ‘nation’) that ideally, and to different degrees in the real world, coincide.[4] This focus results in a fairly limited criticism of “split level” conceptions of justice – either inside state-societies (domestic, or in Miller’s terminology ‘social’ or ‘political justice’) or ‘global’/’cosmopolitan’ justice. This reductionistic two-level picture is reproduced in his own discussion of a third alternative: “a non-cosmopolitan, responsibility sensitive theory of global justice” (2006: 21, see 2007).[5]

Even such a limited, two-level discussion of justice implies fairly complex theoretical strategies. In my view, David and I agree on three important points:

First, global obligations and special obligations may not conflict with each other in some imaginable world, but they are in serious tension in our actual world. When it comes to obligations of justice, this tension is most serious between ‘national responsibilities’ and global ones.[6]

Second, monistic theories and a “simple dualism of justice” which imposes a choice between either global theories (‘cosmopolitan’ or ‘global egalitarianism’) or domestic theories (‘social’ or ‘political’ or often also ‘distributive’ justice) are reductionist and morally counter-intuitive.[7] We need a third alternative which is sensitive at least of global and associative, general and special obligations (national responsibilities amongst them). This third alternative comes in different varieties that for the sake of simplicity may be called (i) ‘embedded cosmopolitanism’, based on ‘reasonable impartiality’, (ii) ‘liberal nationalism’ or ‘moderate patriotism’, based on ‘reasonable partiality’, or (iii) a more than two-level conception of differentiated morality and justice (Bader 2007, chap. 2). Even if one restricts the analysis to two levels, the global and the domestic, embedded cosmopolitanism and liberal nationalism differ markedly from each other when it comes to weighing and balancing competing obligations and to an adequate allocation of duties, or so I try to show below (see Bader 2005: 85 and 100f).

Third, moral minimalism is the most plausible, agreeable, and robust theoretical strategy to defend global justice under conditions of more or less deep cultural diversity inside and between states, and of reasonable disagreement amongst and within all different theoretical traditions. Theoretically, a shift towards minimalism is motivated by a clearer recognition of two main difficulties of ideal theories. (i) Equality dissipates into conflicting equalities (legal, economic, social, political, cultural; formal/procedural or material/substantive; equality of resources or welfare or status), the list of primary goods got longer and longer, and problems of comparing, weighing, and measuring them could not longer be neglected. Even supposing culturally homogenous societies, egalitarian-liberal theories got more complex allowing for many sub-optimal instead of the one-best solutions. In addition, disagreement among liberal egalitarians has been mushrooming. (ii) In culturally diverse societies, under conditions of reasonable pluralism, one can no longer neglect the fact that all fields or spheres of justice, all resources and rewards, all primary goods, all needs and even all basic rights are always divergently interpreted and that each of these cultural meanings has direct and indirect consequences for their relative evaluation and importance. Theories that claim to be neutral with regard to the competing versions of a good life have to be sensitive not to impose predominant cultural interpretations, neither inside states nor globally, not to fall pray to cultural imperialism. For both problems, moral minimalism and satisfying, threshold or sufficiency theories (Miller 2007: 244) seem to provide better, more sensible and more robust solutions. In recent discussion on global justice, theories of basic needs or basic rights (Shue 1980, Elfstrom 1990, Walzer 1995: 193, Jones 1999) and of minimal but strong global obligations are gaining ground (Miller 1995: 75;2006, 2007, Bader 2005b, 2007). In addition, we have good reasons to expect that we can reach higher degrees of agreement on questions of what serious ‘malfare’ (Hacker-Cardon 2003), ‘injustice’, ‘inequalities’, ‘misrecognition’ is and what measures to combat these ‘evils’ are required compared with spelling out what ‘welfare’, ‘justice’, ‘equality’ or ‘recognition ideally would require (Bader 2005: 99, 2007a). David and I fully agree that a morally minimalist theory of basic needs and basic rights is the most promising in all these regards, because it promises higher degrees of trans-cultural agreement between and inside culturally diverse states, because “economizing moral disagreement” promises more robust, urgent, compelling, and enforceable global moral obligations though one has to clearly acknowledge that we cannot gain full consensus even on the short list of basic rights, their interpretation, and application resisting the temptation to expand the list (Miller 2007: 158f, 174, 177, 190; Bader 2007: pages).[8] Global moral obligations or remedial responsibilities, for sure, are a matter of morality or justice, not just charity.[9]

2Dilemmas of Contextualizing Theories

We may have good reasons to elaborate complex theories of justice – and I have summarized some of the most important ones, but (too much) complexity spells theoretical disaster. Theories of contextualized morality are in danger of becoming utterly vague, of reproducing moral intuitions or sentiments without further elucidation and reflection, of escaping into the frequent use of salvatory clauses such as ‘reasonable’ and ‘it depends’ without telling us as exactly as possible what ‘reasonable’ means in this context and why this is the case, or on what it depends. In our case, three dilemmas are particularly vexing.

2.1How to measure and compare the competing arguments and obligations?

These problems characterize already fairly ‘monistic’ theories of egalitarian justice, as we have indicated: how to measure and compare the different kinds and indicators of ‘equalities’? They become even more serious for complex moralities that have to compare different kinds of moral obligations with ethical obligations and with prudential and realist oughts.[10] In most cases, there is “no algorithm that could resolve such disputes. We have to rely on our intuitions” (Miller 2007: 103) and try to find “a proper balance” both for debates on global and on social justice (104).[11]

2.2How to weigh and balance them and, in particular, how to make clear in cases of tension, when and why global obligations should trump or override competing ‘national’ obligations under recent conditions?

Most reasonable people share the intuition that the present world order is “radically unjust” (Miller 2003: 1): “it is morally intolerable that we live in a world where somewhere between 15 and 20% of people live in dire poverty” (2007: 223). It is also obvious, that it is “not easy” or “not a simple task” (2005: 63), to say the least, to exactly tell “how demanding” the competing national and global responsibilities are, whether they should be “balanced” and, if so, how, and “what weight” we should properly attach to them (2005: 69). In 2005, Miller rejected, with good reasons, a simple priority rule for either national or global duties as implausible (71f) and also a proposal “to weight duties according to whether they are local or global in scope” (72). “So when we speak of giving priority to compatriots … this cannot mean either giving their claims strict priority … or giving their claims greater weight when balancing duties ... The picture has to be a more complex one.” (72). Instead, he proposes to specify the respective duties at stake (63). He sketches different classes of global duties: the duty to respect the basic human rights of people everywhere, and the duty to interact with others on fair terms. The duties to respect human rights are roughly subdivided into four clusters:

1. The negative duty to refrain from infringing basic rights by our own actions;

2. The positive duty to secure the basic rights of the people we are responsible for protecting … where we have been identified as the responsible agent.

3. The positive duty to prevent rights violations by other parties.

4. The positive duty to secure basic rights of people when others have failed in their responsibility. (74)

The relative stringency of each of these four duties vary very considerably in their weight, with duty 1 being very strong and duty 4 being comparatively weak and “we will not come up with any simple priority rule in either direction. It will depend which of the sub-duties is at issue”. The first class of sub-duties “excludes any form of partiality towards compatriots” (74f). Most people accept a fairly strong version of priority for compatriots in the second class under conditions of material shortages, however “this priority does not appear to be absolute. Even basic rights can be more or less urgent, and once it is established that we have a particular responsibility to starving people in a foreign country, this duty may be thought to take precedence over our duty to supply elementary education, say, to fellow-nationals” (75). The third subclass of duties “is significantly weaker than the duty not to violate rights oneself, and this sets limits to how far it can trump duties to compatriots” (e.g. in humanitarian interventions). The fourth sub-duty may fall “somewhere between a duty of justice and a merely charitable duty” and “must be trumped by duties of justice owed to compatriots (-77).[12] I agree with David’s summary that “we can’t give any simple account of how these duties stand in relation to the duties of justice we owe to our compatriots. A great deal depends on the form that the global duty takes” and also that “this is not a tidy answer, but reflects the fact that even a simple-sounding duty such as the duty to respect basic rights is in fact internally complex” (77). However, it is fairly disappointing that David, in his recent book, has not really confronted “the challenge … to work out in greater detail when exactly global duties should trump local ones, when local duties should trump global ones, and when we are in the debatable land” where both can be reasonably defended (80).

How to deal with the urgent problem of anadequate allocation of global obligations? In his earlier publications, this question is either bracketed (2005: 73) or at least not as extensively dealt with (2001, see Tinneveld 2006: 1) as in his recent book where one finds (i) an integrated analysis of the relationship between individual and institutionalresponsibility,[13] (ii) of the conditions of collective outcomeresponsibility generally (114ff) and (iii) of national outcome responsibility in particular (121ff) with special attention to the degree and level of self-determination and of democracy, to exclusion, exploitation and discrimination of certain groups (126), to national minorities particularly (126f), and for historical or past injustice (chap. 6: Inheriting National Responsibilities; 238ff). The upshot is, firstly, that national responsibility is a “double edged sword” imposing liabilities (251) or burdens, not only benefits;[14] secondly, that under certain conditions “inequalities can be justified but not, of course … that existing inequalities at global level are fair” (7) because, in the real world, they result from combinations of historical and ongoing violations of basic human rights and of historical and ongoing unfair terms of cooperation;[15] and, thirdly, that many unallocated remedial responsibilities, in this way, may become fairly well-allocated outcome responsibilities – and this would reduce and alleviate the problem of unallocated remedial responsibilities considerably.[16] Still we would be saddled up with other cases that are not covered by past injustice and unfair cooperation (242ff) and the inevitably remaining justice gap (259) or, in my language, how to deal with unallocated global, positive, remedial duties.

(iv) Already in 2001 and 2005, Miller has stated the problem of remedial responsibilities clearly: “Our world contains all too many instances of deprived or suffering people (who) are in no position to live minimally decent lives. Nearly all of us believe that this is a situation that demands remedy: someone should provide the resources to end the suffering and deprivation. The problem does not lie here, but in deciding which particular agent or agents should put the bad situation right… The issue is how to identify one particular agent, or group of agents, as having a particular responsibility to remedy the situation” (2001: 453; see 2005: 75). In his recent book, the analysis is extended and refined.[17] The existing institutionalized and legalized formal mechanisms for imposing sanctions on agents violating their responsibilities are clumsy or, at the international level, even absent. Hence, we have to identify principles and multiple criteria for assigning or allocating the respective remedial obligations. Part of the problem would be resolved if we would be able to clearly assign moral, outcome, and causal responsibilities (these are the three, backward looking criteria (2007: 96-8) implicitly dealt with above). However, actors – without having caused deprivations – may have benefited from processes and relations, or the are capable for bringing relief (effectiveness and costs), or they are related to the deprived by bonds or ties of community that involve special obligations. The latter three principles are forward-looking and cover many cases of deprivation left out by past injustice. Miller shows, that this analysis is normatively “somewhat indeterminate … as to what to do when the different criteria conflict” (100). Attempts to arrange the criteria in rank order (strict sequence) or to reduce all principles into one supreme principle (101; 2001: 464f), and challenges that they would conflate the idea of making redress to someone who has been wronged with the idea of bringing aid to someone who is in need, seem implausible: “In many, probably most, real-world cases of deprivation, assigning remedial responsibility involves applying multiple criteria, which are also somewhat opaque” (2007: 102) and in conflict with each other. Hence “our approach should be more openly pluralistic: we should simply look t0 see which principle or principles apply in a particular case, and if we find that more than one applies, we should weigh their respective strengths” (2001: 467). This “pluralist” or “connection theory is internally complex” but “this complexity may simply mirror the complexity of real-world cases” (2001: 471). It “does not offer a mechanical answer”, let alone an “algorithm” to complex questions but it provides a way of thinking about them “that may in the end prove to be more illuminating” and offers “practical guidance”. Miller acknowledges “reasonable disagreement” (2007) in most concrete cases. A “weakness” regarding the “division of responsibility” remains to “say precisely how remedial responsibilities are to be distributed” (255) and there is “no clear-cut way of attributing remedial responsibilities” (258).