![Sample our Law journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5942/TOC-Subject-Sample-2021-Law.jpg"})
Abstract
This essay criticizes a prominent strand of theorizing about global justice, Rawlsian global constructivism. It argues that the constructivist method employed by cosmopolitan and social liberal theorists cannot grapple with the complexities of interdependence, deep pluralism, and socio-cultural diversity that arise in the global context. These flaws impugn the persuasiveness and plausibility of the substantive conclusions reached by Rawlsian global constructivists and highlight serious epistemological problems in their approach. This critique also sheds light on some broader problems with ideal theory in the global context, showing how it leads to distortions in our thinking about justice and again raising doubts about the epistemological and normative conclusions of global constructivist approaches.
Notes
1. Robert Amdur, ‘Rawls’ Theory of Justice: Domestic and International Perspectives’, World Politics 29, no. 3 (1977); Brian Barry, The Liberal Theory of Justice (Oxford: Clarendon Press, 1973); Brian Barry, ‘Humanity and Justice in Global Perspective’, in Ethics, Economics, and the Law: Nomos 24, eds. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1982); Charles R. Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979); Charles R. Beitz, ‘Economic Rights and Distributive Justice in Developing Societies’, World Politics 33, no. 3 (1981); Charles R. Beitz, ‘Cosmopolitan Ideals and National Sentiment’, The Journal of Philosophy 80, no. 10 (1983); Charles R. Beitz, ‘Justice and International Relations’, in International Ethics, ed. Charles R. Beitz et al. (Princeton, NJ: Princeton University Press, 1985); Thomas W. Pogge, Realizing Rawls (Ithaca, NY: Cornell University Press, 1989); and Thomas W. Pogge, ‘Cosmopolitanism and Sovereignty’, Ethics 103, no. 1 (1992).
2. Charles R. Beitz, ‘Social and Cosmopolitan Liberalism’, International Affairs 75, no. 3 (1999).
3. I don't know of any global constructivists working in political theory today who are not Rawlsian global constructivists. Still, this terminology helps to clarify that we are not discussing constructivism as international relations specialists understand it, nor are we concerned with the kind of social constructivism deployed by scholars in sociology and anthropology.
4. Charles Jones, Global Justice: Defending Cosmopolitanism (Oxford: Oxford University Press, 1999): 14n9; Martha C. Nussbaum, ‘Beyond the Social Contract: Capabilities and Global Justice’, Oxford Development Studies 32, no. 1 (2004); and Janna Thompson, ‘Reasoning About Justice in Global Society’, Global Change, Peace & Security 15, no. 5 (2003).
5. E.g. Samuel Freeman, ‘The Law of Peoples, Social Cooperation, Human Rights, and Distributive Justice’, in Justice and Global Politics, eds. Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul (Cambridge: Cambridge University Press, 2006); and Leif Wenar, ‘The Legitimacy of Peoples’, in Global Justice and Transnational Politics, eds. Pablo De Greiff and Ciaran Cronin (Cambridge, MA: MIT Press, 2002).
6. John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999): 11; hereafter TJ. I shall use KC for John Rawls, ‘Kantian Constructivism in Moral Theory’, The Journal of Philosophy 77, no. 9 (1980); PL to refer to John Rawls, Political Liberalism (New York: Columbia University Press, 2003); LP for John Rawls, The Law of Peoples; with, ‘The Idea of Public Reason Revisited’ (Cambridge, MA: Harvard University Press, 1999); and JF for John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: Harvard University Press, 2001).
7. See ‘Contemporary Approaches to the Social Contract’ in the Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/contractarianism-contemporary/, section 5. This usage also follows the convention of using ‘contractualism’ to describe Scanlonian views; see ‘Contractualism’ in the Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/contractualism/#HowDoeScaConDifOthSocConTheConKanConRawCon.
8. Rawls also assumes that the parties have ‘the two moral powers’: the capacity for a sense of justice (to understand, apply, and act from principles of justice) and the capacity for a conception of the good (to have, revise, and rationally pursue a conception of the good; JF 18ff.). These assumptions, while crucial for a theory of justice, are not unique to constructivist theories.
9. This assumption was famously criticized by Michael J. Sandel, Liberalism and the Limits of Justice, 2nd ed. (Cambridge: Cambridge University Press, 1998), generating a huge controversy; see Allen E. Buchanan, ‘Assessing the Communitarian Critique of Liberalism’, Ethics 99, no. 4 (1989); and Amy Gutmann, ‘Communitarian Critics of Liberalism’, Philosophy and Public Affairs 14, no. 3 (1985).
10. There is also a Kantian interpretation of this assumption; see TJ 223; KC.
11. The next sentence reads: ‘Or if we do not, then perhaps we can be persuaded to do so by philosophical reflection’ (TJ 19). This point underscores that agreement underlies the constructivist method of reasoning, contrary to the claims made by Joseph H. Carens, ‘Aliens and Citizens: The Case for Open Borders’, The Review of Politics 49, no. 2 (1987). I return to this point below.
12. I have written ‘few’, but I know of none who did so.
13. Amdur, ‘Rawls’ Theory’; Beitz, Political Theory and International Relations, 152; Beitz, ‘Justice and International Relations’, 285; T.M. Scanlon, ‘Rawls’ Theory of Justice’, in Reading Rawls: Critical Studies on Rawls’ a Theory of Justice, ed. Norman Daniels (Stanford, CA: Stanford University Press, 1989), 75; Pogge, Realizing Rawls; Thomas W. Pogge, ‘An Egalitarian Law of Peoples’, Philosophy and Public Affairs 23, no. 3 (1994): 197, 247; Darrel Moellendorf, Cosmopolitan Justice (Boulder, CO: Westview Press, 2002), 28; Andrew Kuper, ‘Rawlsian Global Justice: Beyond the Law of Peoples to a Cosmopolitan Law of Persons’, Political Theory 28, no. 5 (2000): 654; Kok-Chor Tan, Justice without Borders: Cosmopolitanism, Nationalism, and Patriotism (Cambridge: Cambridge University Press, 2004), 61; Gillian Brock, Global Justice: A Cosmopolitan Account (Oxford: Oxford University Press, 2009); Wenar, ‘The Legitimacy of Peoples’; and Freeman, ‘The Law of Peoples …’
14. I want to stress that the assumptions sometimes overlap and work together—for instance, to provide determinacy to the conclusions reached through constructivist reasoning (see again Table 1).
15. Barry, The Liberal Theory of Justice, 33, 129; and Amdur, ‘Rawls’ Theory’.
16. David A.J. Richards, ‘International Distributive Justice’, in Ethics, Economics, and the Law: Nomos XXIV, eds. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1982), 282; Beitz, Political Theory and International Relations, 29, 148–49; and Moellendorf, Cosmopolitan Justice. Barry, Beitz, and Pogge all also claimed that even self-sufficient national societies would choose more robust principles of international justice in the second (international) original position than Rawls imagined; see Barry, The Liberal Theory of Justice; Beitz, ‘Justice and International Relations’, 305; and Pogge, Realizing Rawls, 241ff.
17. E.g. Allen Buchanan, ‘Rawls's Law of Peoples: Rules for a Vanished Westphalian World’, Ethics 110, no. 4 (2000); Stéphane Chauvier, ‘Justice and Nakedness’, in Global Justice, ed. Thomas W. Pogge (Oxford: Blackwell Publishers, 2001); Kuper, ‘Rawlsian Global Justice’; Moellendorf, Cosmopolitan Justice; and Tan, Justice without Borders.
18. Pogge, Realizing Rawls, 247.
19. For different, academic versions of this argument see Michael Blake, ‘Distributive Justice, State Coercion, and Autonomy’, Philosophy and Public Affairs 30, no. 3 (2001); and David Miller, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007).
20. E.g. Carens, ‘Aliens and Citizens’; Kuper, ‘Rawlsian Global Justice’; and Pogge, Realizing Rawls.
21. Cf. Kuper, ‘Rawlsian Global Justice’.
22. Consider the apparent analogy with the domestic case, where individuals do not know to what families or associations they belong. The key difference is that principles of justice, which govern the basic structure, do not obtain in families or in associations (though the larger conception of justice might). The problem globally is that two different but overlapping, interdependent basic structures exist; the principles that govern each will necessarily impinge on those governing the other. (I am grateful to a reviewer for suggesting this illustration.)
23. To me the most striking feature of the cosmopolitan constructivist literature—indeed, of the entire literature—on global justice is its almost exclusive focus on redistributive questions, despite the priority Rawls gave to the first principle (though see Luis Cabrera, Political Theory of Global Justice: A Cosmopolitan Case for the World State [New York: Routledge, 2004]; and Véronique Zanetti, ‘Global Justice: Is Interventionism Desirable?’, in Global Justice, ed. Thomas W. Pogge [Oxford: Blackwell Publishers, 2001], who argue that the logic of cosmopolitanism and a global ICS leads inexorably to a global state).
24. E.g. Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship (Oxford: Oxford University Press, 2001); Will Kymlicka, ‘Citizenship in an Era of Globalization: Commentary on Held’, in Democracy's Edges, eds. Ian Shapiro and Casiano Hacker-Cordón (Cambridge: Cambridge University Press, 1999); David Miller, Citizenship and National Identity (Cambridge: Polity Press, 2000); David Miller, ‘The Limits of Cosmopolitan Justice’, in International Society: Diverse Ethical Perspectives, eds. David R. Mapel and Terry Nardin (Princeton, NJ: Princeton University Press, 1998); Charles Taylor, ‘No Community, No Democracy, Part II’, The Responsive Community 14, no. 1 (2003/2004); Charles Taylor, ‘No Community, No Democracy, Part I’, The Responsive Community 13, no. 4 (2003); and Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983).
25. Beitz, ‘Cosmopolitan Ideals’, 596; and Carens, ‘Aliens and Citizens’, 256.
26. I am grateful to a previous reader for help on this point. For an interesting but—in my view—unsuccessful attempt to resolve this problem, see John Charvet, ‘International Society from a Contractarian Perspective’, in International Society: Diverse Ethical Perspectives, eds. David R. Mapel and Terry Nardin (Princeton, NJ: Princeton University Press, 1998).
27. Carens, ‘Aliens and Citizens’, 257; and cf. M. Victoria Costa, ‘Human Rights and the Global Original Position Argument in the Law of Peoples’, Journal of Social Philosophy 36, no. 1 (2005). Also see note 10 and the surrounding text.
28. See Beitz, ‘Cosmopolitan Ideals’, 596. I am grateful to a reviewer for suggesting how this example might clarify my argument.
29. Pogge, Realizing Rawls, 267–68; and Thomas W. Pogge, ‘Human Rights and Human Responsibilities’, in Global Justice and Transnational Politics, eds. Pablo De Greiff and Ciaran Cronin (Cambridge, MA: MIT Press, 2002).
30. See Amdur, ‘Rawls’ Theory’, 460; and cf. Nussbaum, ‘Beyond the Social Contract’.
31. Some cosmopolitan constructivists acknowledge that in unfavorable conditions Rawls's two principles can be suspended with the priority of liberty giving way to economic measures needed to ensure a decent minimum for all; see Amdur, ‘Rawls’ Theory’, 444–45; and Beitz, ‘Justice and International Relations’, 298–99. I am doubtful about this proposal on its merits; political freedoms are essential for economic development; see Rhoda E. Howard, ‘The Full-Belly Thesis: Should Economic Rights Take Priority over Civil and Political Rights? Evidence from Sub-Saharan Africa’, Human Rights Quarterly 5, no. 4 (1983); Amartya Sen, ‘Freedoms and Needs: Why Political Rights Are Primary, Even in the Face of Dire Economic Need’, The New Republic 213, no. 4.121 and 4.122 (1994); and Amartya Sen, ‘Human Rights and Economic Achievements’, in The East Asian Challenge for Human Rights, eds. Joanne R. Bauer and Daniel A. Bell (Cambridge: Cambridge University Press, 1999).
32. Cf. Freeman, ‘The Law of Peoples …’, 61.
33. Cf. Mathias Risse, ‘How Does the Global Order Harm the Poor?’, Philosophy and Public Affairs 33, no. 4 (2005).
34. Jones, Global Justice, 14 n.9.
35. Charles R. Beitz, ‘Rawls's Law of Peoples’, Ethics 110, no. 4 (2000), has argued that Rawls's Law of Peoples would, despite these restrictions, be quite radical and progressive given current conditions. Cf. LP 116.
36. Rawls's extension of his Law of Peoples to ‘decent’ peoples (see LP 4–5, 62ff.) seems more problematic in this regard.
37. Cf. Freeman, ‘The Law of Peoples...’, 42–43; Wenar, ‘The Legitimacy of Peoples’, 62.
38. Wenar, ‘The Legitimacy of Peoples’, 62–63.
39. Ibid., 63.
40. Freeman, ‘The Law of Peoples …’, 48–49.
41. Andrew Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’, International Organization 54, no. 2 (2000); and Jamie Mayerfeld, ‘The Mutual Dependence of External and Internal Justice: The Democratic Achievement of the International Criminal Court’, Finnish Yearbook of International Law 123 (2001).
42. For a powerful substantive critique of Rawls's account of human rights and their selection, see Kuper, ‘Rawlsian Global Justice’, 664.
43. See Buchanan, ‘Rawls's Law of Peoples …’ for a thorough critique on this point.
44. Kuper, ‘Rawlsian Global Justice’; Friedrich Kratochwil, ‘Of Systems, Boundaries, and Territoriality: An Inquiry into the Formation of the State System’, World Politics 39, no. 1 (1986); and Pogge, ‘Cosmopolitanism and Sovereignty’.
45. On this assumption see Freeman, ‘The Law of Peoples …’, 53, 58–59.
46. Several of Rawls's critics have argued that even in his two-stage approach, parties would select some distributive principles; see Pogge, ‘An Egalitarian Law of Peoples’; Buchanan, ‘Rawls's Law of Peoples...’; and cf. Leif Wenar, ‘Contractualism and Global Economic Justice’, in Global Justice, ed. Thomas W. Pogge (Oxford: Blackwell Publishers, 2001). This disagreement nicely illustrates the problem of indeterminacy I have been highlighting throughout.
47. Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ: Princeton University Press, 1999).
48. See note 41 and the surrounding text.
49. Brock, Global Justice, 181. Brock's reliance on constructivism reasoning is frustrating; she is most persuasive when relying on her argument for basic human interests, 58–75. Indeed, given this argument, it is not clear what additional work the constructivist procedure does in her account.
50. Ibid., 304–5.
51. Zofia Stemplowska, ‘What's Ideal About Ideal Theory?’, Social Theory and Practice 34, no. 3 (2008): 334.
52. Adam Swift, ‘The Value of Philosophy in Nonideal Circumstances’, Social Theory and Practice 34, no. 3 (2008): 82, 363.
53. Ingrid Robeyns, ‘Ideal Theory in Theory and Practice’, Social Theory and Practice 34, no. 3 (2008): 352.
54. Amartya Sen, ‘What Do We Want from a Theory of Justice?’, The Journal of Philosophy 103, no. 5 (2006): 226.
55. Ibid., 217. For an attempt to refute Sen's critique see Swift, ‘The Value of Philosophy’, 372ff.
56. Onora O'Neill, ‘Bounded and Cosmopolitan Justice’, Review of International Studies 26 (2000): 67ff.; and Charles W. Mills, ‘ “Ideal Theory” As Ideology’, Hypatia 20, no. 3 (2005): 167.
57. Mills, ‘Ideal Theory’, 168; and Onora O'Neill, Bounds of Justice (Cambridge: Cambridge University Press, 2000): 68. O'Neill distinguishes between abstraction that she finds necessary and useful, and idealization that she describes as false assumptions, 151. I follow Mills in thinking that prescriptive theory necessarily idealizes, so I use the term ‘distortion’ to capture what O'Neill means by idealizations or false assumptions. For a critique of O'Neill's distinction see Lisa H. Schwartzman, ‘Abstraction, Idealization, and Oppression’, Metaphilosophy 37, no. 5 (2006).
58. Thomas McCarthy, ‘Political Philosophy and Racial Injustice: From Normative to Critical Theory’ (Evanson, IL, Northwestern University: 2001): 8–10.
59. Schwartzman, ‘Abstraction’, 578.
60. McCarthy, ‘Political Philosophy and Racial Injustice’, 15.
61. Mills, ‘Ideal Theory’, 173ff.
62. Ibid., 172.
63. McCarthy, ‘Political Philosophy and Racial Injustice’; Mills, ‘Ideal Theory’; and O'Neill, Bounds of Justice, 152.
64. McCarthy, ‘Political Philosophy and Racial Injustice’, 10.
65. Mills, ‘Ideal Theory’, 168–69.
66. Cf. ibid., 172.
67. O'Neill, Bounds of Justice, 165–80.
68. Buchanan, ‘Rawls's Law of Peoples …’, 717–18.
69. Laura Valentini, ‘On the Apparent Paradox of Ideal Theory’, The Journal of Political Philosophy 17, no. 3 (2009): 22. Beitz (‘Rawls's Law of Peoples …’, 680) correctly observes that mis-description is not the issue; in his view, the point of idealization is to establish worthy ideals toward which reformers can aim. He rejects peoples as an undesirable or unworthy ideal. This position, however, fails to distinguish relevantly different kinds of mis-description; namely, abstraction, idealization, and distortion. Peoples is an undesirable concept in part because it distorts reality.
70. See note 22 and the surrounding text.
71. On this interdependence see note 30.
72. I owe this felicitous phrase to Robert Lepenies.