Liberal Contractualism - Partial and
Particularist, Impartial and Cosmopolitan
Andreas Føllesdal
ARENA
Abstract
Several authors have explored or defended moderate
nationalism, characterised by limited partiality for
fellow nationals or fellow citizens, and loyalty to the
laws and institutions of one's own society. Critics have
argued that such loyalties are incompatible with
"cosmopolitan" universalist liberalism, on at
least two grounds. The article seeks to rebut these
objections from a liberal contractualist position similar
to that of Rawls, Dworkin and Scanlon. Liberal theories
are thought to disallow deviations from impartial
treatment and therefore rule out substantive special
claims among compatriots. The scope for contractualist
partiality is the subject of section 2. Liberal theories
are also considered unable to account for political
duties -- the duty to comply with the just laws and
institutions of one's own state. The contractualist
grounds for political allegiance are addressed in section
3. This is not to say that liberal contractualism endorses nationalism understood as a
principle of political order, that political and
cultural/ethnic boundaries should coincide*. A brief sketch of some elements of
Liberal Contractualism is presented in section 1.
Introduction
Alleged tensions between
liberalism and nationalism have recently received
sustained attention. [1]
Several authors have explored or defended moderate
nationalism, characterised by limited partiality for
fellow nationals or fellow citizens, and loyalty to the
laws and institutions of one's own society. [2] Critics have argued
that such loyalties are incompatible with 'cosmopolitan'
universalist liberalism, on at least two grounds. The
article seeks to rebut these objections from a liberal
contractualist position similar to that of Rawls (Rawls
1955, 1971, 1978, 1993), Barry (1995, 1999), Dworkin
(1978), Scanlon (1998) and Freeman (this volume). [3] Liberal theories
are thought to disallow deviations from impartial
treatment and therefore rule out substantive special
claims among compatriots. The scope for contractualist
partiality is the subject of section II. Liberal theories
are also considered unable to account for political
duties - the duty to comply with the just laws and
institutions of one's own state. The contractualist
grounds for political allegiance are addressed in section
III. This is not to say that liberal
contractualism endorses nationalism understood as a
principle of political order, that political and
cultural/ethnic boundaries should coincide. [4] A brief sketch of
some elements of Liberal Contractualism is presented in
section I.
I Liberal Contractualism
Under what conditions do citizens have reason to
accept institutions and cultures as normatively
legitimate and binding on their conduct? The
contractualist account of normative legitimacy holds that
individuals are normatively bound to comply with laws and
institutions only if they satisfy principles which can be
justified by arguments in the form of a social contract
of a particular kind. The principles of legitimacy we
should hold institutions to, are those that the persons
affected would unanimously consent to under conditions
which secure and recognise their status as appropriately
free and equal. These standards of legitimacy are
specified by consideration of what interests and
principles no one could reasonably reject as a basis,
given the mutual interest in acting on such
non-rejectable grounds. Hence the phrase contractualist.
This commitment is honed by the claim that institutions
are legitimate only if they can be justified by arguments
in the form of a social contract of some specific kind.
This notion of possible consent allows us to bring the
vague ideals of equal dignity to bear on the questions of
legitimacy and institutional design.
The social institutions that surround us have a
pervasive impact. They provide the backdrop for the
distribution of important goods, powers, burdens and
obligations. At the same time institutions shape our
expectations and values. We have a strong interest in
affecting these circumstances that shape our interests
and plans. Furthermore, we have a strong interest in
fulfilling our legitimate expectations. Hence control and
influence over political decisions is a great good. This
is why the distribution of political authority through
institutional arrangements is a central issue of
political philosophy, and a central topic of Liberal
Contractualism.
I.1 Equal Respect - Moral Cosmopolitanism
Liberal Contractualism assumes normative individualism
- that is, that the ultimate grounds for all arguments
are the interests of the individuals affected by the
rules under consideration. It also is universal
concerning who has moral status: justification is owed to
every person in his or her own right. Thirdly, it has an
egalitarian premise; namely that all parties are worthy
of equal concern and respect. These features makes it a moral
cosmopolitan view (cf. Pogge 1992, 1994a; Beitz
1994).
The notion that all affected parties must be served by
the institutions is an interpretation and application of
this vague commitment. Those on the inside of national
borders have the same fundamental moral standing as
outsiders, since the similar claims of each count
equally, regardless of citizenship. However, this need
not entail institutional cosmopolitanism, that the
world order should be one of a universal republic, such
that global distributive pattern of benefits and burdens
should be independent of the borders of states or other
political units. I shall indicate below that Liberal
Contractualism may allow different claims among
individuals, including more egalitarian claims among
fellow citizens.
I.2. Mode of arguments: permissibility versus deduction,
underdetermination
Of some relevance to the issues at hand, we should
note that the contractualist approach leads us to search
for principles against which no reasonable objections can
be made. Principles are presented for such assessment,
and the process of checking whether objections can be
made can leave a range of permissible principles. Note
two important features:
There is no sense in which such
principles of justice, or particular institutions, are deduced
or generated by the process of checking
whether equal respect is secured. [5]
The procedure checks for consistency, and does not offer
a deductive path. Moreover, the process can in principle
allow several alternative principles. Thus the set of
principles may be underdetermined, in the sense that
alternative principles may all be unobjectionable.
Furthermore, the same set of principles for legitimacy
may allow a variety of sets of institutional
arrangements, each of which satisfies the distributive
requirements of Liberal Contractualism. The moral unity
provided by such a theory is not one, therefore, of
deduction, but of an analysis of the institutions which
show that they are consistent with, and can be regarded
as an expression of, a view of individuals as enjoying
equal respect.
In light of these comments, it should be clear that
this tradition allows different just institutional
arrangements. Blueprints of institutional design are out
of reach. Institutionalisation of justice happens or is
pursued in different, yet possibly equally just ways -
for instance within different just states.
I.3. Relevant interests: include Meeting Expectations and
Culture
Among the interests of individuals that can command
general agreement for purposes of arguments about
legitimate social orders are the satisfaction of basic
needs and all-purpose means for pursuing one's conception
of the good life. The set of social institutions as a
whole should secure the interests of all affected parties
to an acceptable degree, including our interests in
peace, stability, basic needs, and shares of goods and
powers. Among the important interests we must take each
other to have, for purposes of such agreements, are
interests in joint activity as well as an interest in
developing our preferences under acceptable conditions.
The relevant interests also include individuals'
interests in social activities, involving the
co-operation of others. A further, related interest, is
our interest in being assured that others honour
our important and good faith expectations. [6]
Contractualist theories are said to deny the intrinsic
value of community, and ignoring the "embedded"
nature of human beings. [7]
However, Liberal Contractualism recognises that the
social institutions, culture and practices shape our
expectations and aspirations in fundamental and
inescapable ways. Social institutions have a pervasive
impact on the development and satisfaction of our
interests by framing our expectations. We are concerned
with the legitimacy of social institutions precisely
because they exercise a strong influence on us, or our
life plans and our expectations. [8]
This is one reason why individuals must be acknowledged
to have an interest in procedural control over the social
institutions that shape values, goals, options and
expectations.
Thus Liberal Contractualism accommodates the
communitarian concern for constitutive attachments and
commitments, found within the traditions and roles we
take part in, and not chosen by the individual.
Satisfying legitimate expectations is an important
interest, and stable social institutions are crucial for
making and pursuing life plans. We thus have good reason
to maintain social institutions, insofar as it is only
under fairly stable institutions and other practices that
expectations can be created and met (Follesdal 1996).
I.4. The Role of Consent for Legitimacy
One contribution of Liberal Contractualist theory is
to delineate some limits to the morally binding rules and
practices that surround us, employing the apparatus of
consent for this purpose. Every individual's interests
must be secured and furthered by the social institutions
as a whole (Dworkin 1978). This commitment is honed by
the notion of possible consent, allowing us to bring the
vague ideals of equal dignity to bear on pressing
questions of legitimacy and institutional design. To
prepare the ground for the discussions below, some
remarks about the role of consent are in order.
Undoubtedly, Liberal Contractualism relies on the
notion of choice in determining that some institutions
are illegitimate. One aim of these liberal theories is to
bring the commitment to justice to bear on our rules,
institutions and practices in order to determine whether
they are compatible with the equal respect and concern
accorded every person. We do not have a political duty to
comply with regimes that are clearly illegitimate. Our
moral obligation to obey the law of the land is justified
in part by the claim that this social order could have
been the subject of consent among all affected parties.
Two further conditions must also be satisfied in order to
determine the scope of a person's duties: the content of
the institutional requirements, and the issue of whether
these institutions or practices apply to that person. I
return to this threefold task below.
While legitimate institutions must be such that they
could secure hypothetical consent under specified
conditions, Liberal Contractualism does not hold that
individuals are only bound to institutions by voluntary
consent. The aim is not to show that all moral claims are
acquired by consent, from self-interested premises or
otherwise. Consent, hypothetical, tacit or otherwise,
does not create the moral obligation or duty in
the same way as free and adequately informed consent
binds those who so consent. Instead, Liberal
Contractualism serves to delineate the limits of one's
duties, acquired by birth or by consent.
The existing legitimate institutions are not binding
on us because we actually consent, or participate in a
daily tacit plebiscite (Renan 1939). To be sure, we
usually act according to the practices we find ourselves
part of (Walzer 1977: 54), but we do not have, and have
never had, a real freedom with regards to the social
institutions. Indeed, ordinarily we cannot choose to
reject them, and not even the act of voting expresses a
morally binding tacit consent to be governed.
The idea of possible consent in the contractualist
tradition does not provide the source of moral
duty, but is an expression of one important condition for
such duties. Obedience is required only when power is
distributed fairly. Appeals to consent thus serves to
recognise legitimate authority, but consent is not held
to generate the moral authority of institutions (Murphy
1994). Rather: any actual obedience on the part of
individuals can at the very most be taken as evidence of
their belief about the legitimacy of institutions, rather
than as a justification of these institutions themselves
(Raz 1994: 338; pace Walzer 1977).
II Contractualist Partiality
II.1. The Challenge: how justify (limited) Partiality?
Several authors have noted the
tension between moral cosmopolitanism and special
responsibilities toward some individuals. What I have
been trying to dispel is the comforting thought that one
can embrace universalism in ethics while continuing to
give priority to one's compatriots in one's practical
reasoning. (Miller 1995: 64). [9]
Several authors seek to defend moderate nationalism. [10] One strategy
consists in limiting the range of goods provided to
fellow nationals - e.g. denouncing domination and
aggression against other states, and according
non-citizens rights. Special treatment in the form of
medals, statues etc. would also seem compatible with
impartial treatment regarding goods that matter for more
material interests. But this begs the question: is
limited partiality consistent with liberalism's
commitment to equal concern and respect?
II.1.1. Why Equality?
I shall briefly sketch why moral cosmopolitanism may
allow substantive inequalities within strict limits. The
strategy denies that equal concern and respect must also
require that institutions secure equal shares to all. [11] I suggest that
those who jointly produce goods have particularly strong
claims to equal shares of these benefits of co-operation.
[12] Those who
share institutions create such benefits, or so I shall
argue. These communities of co-creators have been
coextensional with nation states, at least on some
accounts of the ideal system of states. Within a system
of somewhat sovereign states, such claims hold among
citizens, but not against foreigners to the same extent
-- though claims based on vital needs hold against
institutions regardless of state borders.
There are at least four different
reasons for lamenting specific kinds of inequalities. [13]
a) Preventing misery. From the moral point of view, a
set of institutions must be acceptable to all affected
parties. If this normative commitment is to have any
substantive content, surely, acceptable institutions must
engender and distribute benefits so as to meet the basic
vital needs of all, securing their survival. Human rights
can be interpreted and defended as institutional
conditions on domestic and international regimes so as to
secure the satisfaction of these needs (Follesdal 1991).
The current world order fails dismally on this point:
those with nothing to sell in the market cannot buy food,
and large economic inequalities can even prevent wage
earners from acquiring food. Differences in relative
political power perpetuate abysmal prenatal health care
for the poor. Among the human rights are some obligations
of international support as final resorts, when domestic
resources run out or when government powers are grossly
abused. But basic needs and human rights do not secure
equality (cf. Miller 1995: 191). Instead this
consideration limits drastic inequality regarding certain
specific goods, insofar as these inequalities engender
misery.
b) Preventing Domination. A social order is
objectionable if some individuals can drastically
restrict the attractive options of others, prevent
deliberation or otherwise leave them at the mercy of the
powerful. Individuals have an interest in
maintaining control over the social factors that shape
their own lives -- in particular if the alternative is
that others wield such control. Large inequalities of
wealth or income opportunities can prevent the less
privileged from exercising control over their lives, and
subject them to the bargaining power of the powerful in
various spheres of life. These arguments hold against
such inequalities that impact on the distribution of
control over individuals' lives.
c) Equal power for fair procedures. A further ground
for equality also stems from our interest in controlling
the social factors that shape our lives. Many social
procedures and mechanisms require for their fairness a
roughly equal distribution of procedural input levers.
Some adversarial procedures illustrate this: If legal
trials are to regularly identify the guilty, competent
counsel must represent both parties. Democratic
arrangements likewise require a broad dispersal of real
political power, education and income and wealth, since
relative shares of these levers often matter for the
distribution of output benefits. Such arguments only
apply when we have standards for determining what outputs
the procedure should generate.
d) Equal Shares of Products of
Co-operation. Individuals may claim equal shares of
certain goods when a) they have contributed equally to
the production of the benefits, and b) when no one can be
said to have prior claims to the benefits -- for instance
when there is no prior agreement regarding distribution
and each party's contribution cannot be determined. [14] When several
jointly labour to produce goods, they have equal claims
regarding these goods. I submit that legal powers can be
regarded as such products of co-operation. Legal powers
and immunities are aspects of social practices, that is,
of behaviour that is regulated according to public rules.
For a social practice to exist there must be a set of
rules, generally complied with and acted on by the
participants in the practice, and this fact of general
compliance must be common knowledge. We may think of social
institutions as the practices that are maintained by
the use of legal powers. Sanctions enforce the public
rules, and hence provide public assurance of general
compliance; authoritative interpretations apply the rules
to new or difficult cases.
Legal powers are benefits of social institutions.
Within a state, a wide variety of legal powers and
immunities are constituted by the rules of rights of
social institutions. Political power, rights, and even
income and wealth can be regarded as aspects of the rules
that regulate social practices. Money exists, to take an
example, only within a social practice regulated by rules
defining legal tender. Ownership, freedom of speech, and
political rights are likewise aspects of social practices
which only exist when there are practices securing such
control, regulated by public rules that are generally
complied with.
A wide variety of legal powers are constituted
by social institutions, i.e. by the general compliance
with laws within a state. Thus political power, rights,
and even income and wealth can be regarded as aspects of
the rules that regulate social practices, which all
law-abiding citizens participate in upholding. Someone
enjoys these powers and controls if and only if the
participants in the practice generally recognise and act
according to the rules specifying these rights. A legal
right is therefore a benefit of co-operation among a
group of individuals: the right exists only when they
participate in the social practice specified by that
right.
For instance, an individual who validly lays claim to
certain objects as her property must show that she has
acquired these objects according to certain public rules
regulating entitlements. Insofar as she has complied with
these rules, the objects are clearly hers, and not
anybody else's. But her claim of ownership is only true -
and can only be made sense of - because these rules of
ownership are publicly known and generally complied
with by those participating in that practice. While
her entitlements are hers, the entitlements are
nevertheless entitlements only because others
regulate their actions according to public rules. Legal
powers are thus goods that are products of co-operation.
In arguments about how institutions should affect the
distribution of these goods, all participants in social
institutions have an equal claim to the political and
other legal powers that arise. This holds not only for
those who contribute to the economic production of
material goods, but for all those who regulate their
actions according to the rules of the practices that
constitute these goods. 'Equal shares of products' is an
appropriate standard.
This complex view of social institutions provides an
argument that citizens have equal claims on how social
institutions should regulate the distribution of
political power, income and wealth. This grounds a claim
to equal shares of these benefits. I suggest that this
account provides an argument in favour of Rawls'
egalitarian principles for Social Primary Goods -
political and civil rights, and equality of opportunity
and income and wealth. These goods are rights-clusters
specified by rules governing the practices maintained by
citizens. These legal powers are created and maintained
through individuals' participation in social practices,
can only be described and identified in terms of the
practices, and can only be distributed among the
participants in the practice. Thus Rawls' theory is exclusively
concerned with the internal goods of practices.
II.1.2. Domestic Equality, Global Inequality
I submit that these reasons for claims to equality
fail to hold globally within the states system as
traditionally conceived. Sovereign states enjoy broad
formal powers of external sovereignty, as
guaranteed by international institutions. There are few
if any decision-making bodies above it, and states will
generally not intervene forcibly or dictatorially in one
another's internal affairs. (Bull 1977: 70). Thus, the
government - and, in a democracy the citizens - are
formally free from external agents, to influence the
social institutions which shape their lives. This is not
to deny, of course, that natural facts and the actions of
other powerful agents often restrict the range of
alternatives. Still, I suggest that formal external
sovereignty affects the standing of arguments for
equality.
Market shares, oligarchic trans-national corporations,
and structural adjustment policies affect a state's
ability to determine its international and domestic
policies. Citizens' control over outcomes is reduced when
they have little purchasing power relative to foreigners
in international markets. So a legitimate world order
must clearly constrain global inequalities of income and
wealth. However, international inequalities in income do
not determine the domestic distribution of control
over non-material goods. Domestic legislation can
often insulate domestic political institutions from the
impact of international economic inequality. For
instance, legislation may prohibit foreign funding of
political campaigns, and bar the immigration of
foreigners who outbid domestic applicants to education
and employment, and regulate access to international
markets. Hence when states enjoy de facto sovereignty,
the government can serve as a buffer to reduce the impact
of international income inequalities.
So the claim to international equality of
income and wealth is not supported for instance by the
concern to avoid misery or domination, or to secure fair
processes, as long as states enjoy formal external
sovereignty.
In addition, foreigners do not maintain the domestic
social institutions of sovereign states. So they cannot
claim that they participate in shared institutions to the
same extent as compatriots do. The 'constitutive'
argument for equal shares of products of co-operation
thus does not apply across state borders as traditionally
conceived.
II.2. Implications
This sketch of reasons for equality indicates how
Liberal Contractualism may allow partiality for fellow
citizens, within limits. Partiality is limited by
consideration of human rights, but citizens in different
sovereign states will have fewer claims to equal shares,
and to limits to inequality. Another important limit is
that citizens of different states participate in shared
practices across state borders. Thus Thomas Hurka claims
that "there are no comparable institutions joining
non-nationals, even ones living just across a national
border, and therefore no comparable goods they can be
said jointly to have produced." (Hurka 1997: 155)
I believe that this claim is
mistaken with regard to income and wealth. The global
economic interdependence of trade and finance makes
individuals more vulnerable to cross-border effects of
misery, domination and unfair procedures - and make it
less plausible to regard domestic economies as
constituted solely by co-operation among compatriots. [15] In the European
Union, member states have pooled sovereignty to such an
extent that it seems plausible to hold that similar
distributive principles must apply within the Union as
within member states. [16]
The upshot of this is that while claims to partiality are
theoretically sustainable within Liberal Contractualism,
the empirical interdependence makes for less extensive
partiality.
II.2.1. Objection: Cosmopolitan commitments exhaust
all resources
Two objections to this account may now be considered.
Several authors suggested that liberalism cannot provide
for substantive partiality, since global impartiality
would squeeze out any special duties that entail unequal
shares. Once cosmopolitans have ensured that institutions
give individuals globally their due, nothing would be
left to distribute among conationals (MacIntyre 1984: 6).
The challenge is to explain how, if at all, "if
justice really does generate nonparticularized reasons,
how does the scope of those reasons get reduced by the
individual's relation to a particular set of
institutions." (Scheffler 1997: 197; cf. Miller
1995: 60).
In response, the argument above indicates how liberal
contractualism allows substantive commitments for fellow
citizens, partly because the claims of non-citizens is
not to equal shares, but to institutions that secure
basic needs. Thus there is no unavoidable conflict
between particularist obligations and the universal
requirements of human rights. However, liberal
contractualism will hold that vital human needs - and
human rights of aid - restrict the share of goods to be
distributed equally among co-producers (Follesdal 1991).
Insofar as international or global distribution must
also satisfy egalitarian standards, this is not a feature
of Liberal Contractualist formal impartiality, but a
normative implication of the social fact of institutional
interdependence.
II.2.2. Objection: Non-contributors are excluded
Yael Tamir has criticised contractualist theories for
excluding the truly needy. They have no claim on the
benefits of co-operation. "Only those who have
participated in one way or another in the production
process deserve a share of the goods. But those most in
need are frequently those who have not participated in
the production process -- the 'worst off' could be
unemployed, seriously handicapped, ill, drug addicts,
minors, or old." (Tamir 1993: 120)
In response, note that contributors
who jointly create legal powers are all those who
regulate their actions according to public rules - not
only those who are participants in economic production.
Those who uphold their part in practices have a claim
that the institutions should secure an equal distribution
of the benefits. Nevertheless, this account does leave
some individuals with less than a full claim to equal
shares, namely those who are unable or unwilling to
regulate their actions according to such public rules.
Some severely handicapped individuals may thus not have
reasonable claims to an equal share, on this account.
However, the claims to satisfy basic needs would still
hold. [17]
III Contractualist Political Allegiance
Several authors challenge contractualist accounts of
political allegiance - or lack thereof. David Miller, for
instance, questions whether universalist liberal theories
can account for the intuition that "in a national
community a case can be made out for unconditional
obligations to other members that arise simply by virtue
of the fact that one has been born and raised in that
particular community." (Miller 1995: 42; cf. Tamir
1993: 105)
An acceptable theory of legitimacy must justify the
particular interests and political allegiance of persons
towards their own culture and state. One central
challenge to liberal accounts is their stress on
voluntary choice. This is why liberals get particularist
duties wrong: "cultures, unlike ships, are not
vessels to be boarded and abandoned at will."
(Miller 1994: 154).
Samuel Scheffler gives a precise diagnosis of the
alleged inability to account for involuntary political
obligations. The foundational role of choice in
contractualist liberalism prevents involuntary
obligations: "the idea that unchosen ties to a
community or tradition can carry moral weight may seem,
at the very least, completely alien in spirit. (Scheffler
1999: 273).
In order to address this issue, we must consider the
grounds for political allegiance. How does Liberal
Contractualism account for our duty to obey the laws of
our government - if at all? And what role does consent
play - actual, hypothetical or tacit?
III.1. Natural duty of justice defended
We often have special duties towards particular others
- e.g. one's family, and compatriots - and to obey the
laws. How are we to understand the moral force of the
claims of existing practices and institutions we are born
into? Contractualism does not deny that we have a moral
duty to obey the laws of the land, even in the absence of
any consent on our part. We have many duties that we have
not explicitly or tacitly consented to. Actual, tacit or
hypothetical consent is not the source of moral
obligation to comply. I submit that John Rawls' appeals
to a "natural duty of justice" provides a more
robust answer than critics have acknowledged. The Natural
Duty of Justice:
requires us to support and to comply with just
institutions that exist and apply to us. It also
constrains us to further just arrangements not yet
established, at least when this can be done without too
much cost to ourselves. Thus if the basic structure of
society is just, or as just as it is reasonable to expect
in the circumstances, everyone has a natural duty to do
his part in the existing scheme. Each is bound to these
institutions independent of his voluntary acts,
performative or otherwise. (Rawls 1971: 115, cf. 334)
Special duties to comply with the laws and policies of
one's government, then, are supported by a principle of
an "impersonal" theory of justice. The special
duties an institution imposes are morally binding insofar
as the institution is permissible, i.e. part of a society
that satisfies contractualist principles of justice.
III.1.1. The threefold grounds of political duties
An affirmative answer to whether institutions are
legitimate is only one necessary condition for
determining the question of political duty - when an
individual is morally bound to comply with an existing
arrangement.
I submit that a determination of our duties, on this
view, includes three tasks:
-- Determination of the social facts concerning
the practice, including the institutions.What are the
rules of the practice, and are they generally complied
with to such an extent as to shape the expectations of
those affected? We must show that this particular set of
institutions, and not another one, does in fact exist in
the society: these rules, and not another set of rules,
are publicly known and generally complied with. Thus a
thoroughgoing justification of our institutions over
other just ones must refer in part to our shared history,
the general acceptance of these rules etc.
-- Criteria of normative legitimacy. A
determination of whether this practice is legitimate,
such that it generates a moral duty on participants to
meet the corresponding expectations of others. Arguments
appealing to hypothetical consent are made in this
context. Note that involuntary participation need not
render such practices normatively illegitimate, though
voluntariness may affect the criteria of legitimacy.
-- Criteria of applicability. Does this
practice in fact apply to this person, according to the
social facts? A person may be held subject to the
practice through consent - e.g. by promising - or held to
be subject by being born into certain positions, roles
and offices, in such a way that others form expectations
of future compliance with the rules. Thus some
'relational facts' may be relevant - though only such as
are normatively permissible.
These three issues must be addressed in order to
determine the duties of an individual. For instance,
citizens have special duties such as abiding by the laws,
including conscription, to their own country insofar
as the nation-state (including the office of
citizenship), firstly, includes such requirements among
the rules of the practice; secondly is a just set of
institutions, satisfying the relevant contractualist
principles; and thirdly, applies to that individual.
This threefold account is compatible with many views
that insist on the relevance of historical and cultural
context. Tamir holds that justifications for political
obligations must be grounded partly contextually (Tamir
1993: 134). And it would appear to be a version of what
David Miller calls Ethical Particularism, an ethical
universe "in which agents are already encumbered
with a variety of ties and commitments to particular
other agents, or to groups or collectivities, and they
begin their ethical reasoning from those
commitments." (Miller 1995: 50)
Miller's criticism against "ethical
universalism" does not apply against Liberal
Contractualism as presented here. Miller holds that
"No ethical universalist can allow 'because he is my
brother' to stand as a basic reason for action."
(Miller 1995: 50). However, Liberal Contractualism would
respond that within any set of institutions,
individuals justify their actions by appeal to the rules
of the set of institutions in place, drawing on the
social facts of the practice (cf. Rawls 1955). So one's
culture may well spell out the content of these special
duties and thus give reasons that are said to bind us.
However, these rules and practices do not give a complete
justification of the duties, since we must at times offer
a justification of the existing culture as well. But this
need to assess practices critically is not a problem as
Miller sees it: we need not "conclude by endorsing
the moral demands that conventionally attach to those
relationships." (Miller 1995: 50).
III.1.2. Objection: Whence the
binding force of non-voluntary institutions?
We now turn to consider objections to this
contractualist account of political allegiance [18]. A. John Simmons
questions whether such accounts can explain why
institutions bind us (Simmons 1979, ch. 6). How can
institutions we have not consented to, still impose moral
duties on us - Whence their binding force?
Institutions cannot simply impose duties by fiat, they
must somehow have the authority to do so. In particular,
why does one have responsibility to comply with the
institutions of one's own society? Simmons holds that the
only way to determine whether institutions 'apply' is to
determine whether they are in force within the territory
where one lives, but this is deeply problematic: "my
birth and growth in a territory within which the
institution's rules are enforced; but my birth is not an
act I perform, or something for which I am
responsible." (Simmons 1979: 149-50). He holds that
'application' must be morally significant - which must be
more than simply being specified by the institution's
rules. "Only in cases of application in the strong
sense, those that involve an individual's consent, say,
or his acceptance of significant benefits, does
'application' begin to look morally important."
(Simmons 1979: 150-51). Only voluntary acts can generate
duties, claims Simmons.
We may challenge Simmons claim that the only morally
relevant sense of application can be consent or explicit
acceptance of benefits received: this begs the question
(Scheffler 1997: 197). But Samuel Scheffler notes that
the liberal who accepts that we may have involuntary
duties due to particular other members of significant
social groups, appear to be committed to recognising associative
duties, at least in this special case (Scheffler
1997: 197). But such associative duties run
counter to the liberal commitment to choice as a central
element in accounts of legitimate duties.
In response, let us first clarify a discrepancy
Sheffler notes between associative duties as he defines
them, and the natural duties discussed by Rawls
(Scheffler 1997, 1997). Associative duties are owed to
specific individuals, while natural duties are owed 'to
persons generally.' Michael Sandel appears to dismiss
this account of political duty for this very reason:
Natural duties cannot justify our compliance with
particular institutions because these duties hold among
all regardless of institutional affiliation (Sandel 1982:
110). I submit that the apparent discrepancy can be
resolved by noting that the natural duty of justice is a
principle about institutions and institutionalised
duties. It is not itself an institution. Instead, the
natural duty of justice holds among all regardless of
institutional affiliation. It is part of the
justification of the role-specific duties among
particular individuals that are specified by legitimate
institutions. Thus Liberal Contractualism may accepts
associative duties in principle, by appeal to the natural
duty of justice.
The challenge posed by Scheffler, then, is how this
can be compatible with the alleged liberal commitment to
voluntariness and choice (Scheffler 1999: 273). Note that
Liberal Contractualism gives a central role for choice
only for the second of the three grounds for determining
political duties: criteria of normative legitimacy, but
not criterion of applicability. However, more must be
said about why some, but not all, associations may give
rise to binding, involuntary duties. Why may not state
power be used to enforce a variety of cultural
affiliations? (Scheffler 1999: 274). Two general comments
must suffice.
In the first place, the issue of political allegiance
to a political order is of a fundamentally different kind
than the question of compliance with associations
existing within such an order. Thus Rawls' comments about
the basic structure of society seems appropriate. The
basic structure consists of institutions that define and
regulate political authority, securing background
conditions for life and associations necessary for human
flourishing (Rawls 1978). It is only within such a
framework that consent can be made under such conditions
as to be morally binding. Two important questions concern
the plausibility and justifiability of relying on
consent. Firstly, it is unclear whether individuals can
give consent to a political order in such a way that
their consent establishes moral obligations. No plausible
alternatives are available - neither emigration nor
internal exile from the political order and the cultures
and associations it facilitates are so costless as to
render consent uncoerced.
Moreover, we must ask what grounds
are there for insisting that political allegiance should
be acquired only by consent, given that an arrangement
with consent would lead to loss of assurance and trust
among citizens, regarding issues of paramount importance.
In the absence of this assurance, individuals are unable
to form stable expectations on the bases of institutions
and practices. It is unclear that anybody has interests
sufficiently important that they warrant that duties of
compliance must be made conditional on consent. [19] After all, the
existing institutions that bind individuals must satisfy
whatever principles of legitimacy are appropriate, thus
safeguarding a wide range of interests.
Simmons claims that the Natural Duty of Justice does
not get rid of all assurance problems, since there will
still be an assurance problem insofar as some citizens
reject this account of involuntary political allegiance.
(Simmons 1979: 144). However, this is a different issue
altogether, arising not if this duty is accepted but if
is not generally accepted. This cannot count as an
objection to the account, particularly without arguments
that some other account is more plausible.
III.1.3. Objection: Why duties to my state, rather
than to the most just state?
Simmons and Tamir reject justifications of political
duties that rely on a normative evaluation of the
political framework. Such strategies allegedly miss their
aim: these arguments would appear to impose duties on us
all to support and abide by all just governments, instead
of duties to one's own less just state (Tamir 1993: 117,
133; cf. Simmons 1979: 156).
In response, consider the threefold grounds presented
above. The fact that other institutions exist elsewhere,
or that they may be somewhat more just, does not by
itself generate a duty on my part to abide by them. The
first and third grounds of political duty are missing,
because the first and third steps are missing. By
hypothesis, the foreign practices and institutions do not
regulate individuals' conduct and expectations: they are
not generally complied with. And the question of
applicability is presumably answered in the negative.
Since this account includes the normative legitimacy of
institutions as only one of several necessary conditions,
this objection is avoided.
III.1.4 Objection: No one has Duties of Political
Allegiance
David Lyons has criticised the Natural Duty of Justice
on opposite grounds: such accounts lead to the conclusion
that no one has duties of political allegiance. The
problem is not that one is bound to support all
governments, but that no government is sufficiently just
to merit obedience. "the real social circumstances
... rarely if ever satisfy the conditions required for
the principles' application. (Lyons 1995-96: 11)
Compliance can still be required, according to Lyons,
"but as a means of preventing worse
immoralities." (12)
These observations seem accurate, but it is not clear
that they amount to an objection to this account. Even
when the Natural Duty of Justice fails to apply, we may
still have several reasons to abide by illegitimate
regimes -- though this is not a political duty. These
reasons may include, in addition to reasons of
self-interested prudence, consideration of those who are
unjustly treated and the chances of improving their
plight by reforming unjust regimes. It would seem
plausible that respect for them should lead us to be
careful of hurting them even more by partial compliance
on our part. Thus the absence of a duty to obey does not
entail that individuals have a moral right to disobey.
III.1.5. Objection: Contractualism Fails to
motivate
This contractualist account might appear to give
insufficient force to special duties, since abstract
principles fail to provide the proper motivation "to
participate in public life or to defend their community.
(Miller 1997: 81). The cause of this failure is the
aspirations of liberal universalist thought, to
"establish by abstract reasoning foundational
principles in moral and political philosophy from which
more concrete injunctions are then derived... The
abstract arguments generate only formal principles, and
the content has to be smuggled in from elsewhere. (Miller
1997: 71). Bernard Williams appears to voice similar
worries: A practice "may be so directly related to
our experience that the reason it provides will simply
count as stronger than any reason that might be advanced
for it." (Williams 1985: 114).
At least two responses are
appropriate. [20]
Firstly, Liberal Contractualism does not aim to provide a
theory or principles of legitimacy that should motivate
individuals at all times. What should motivate
individuals is a separate question from what principles
are appropriate for assessing institutions. [21] To be sure, there
are times when principles of justice motivate, for
instance when citizens and politicians deliberate about
the justification of an institution and of institutional
change prior to deciding how to act, e.g. when voting. [22] However, it need
not be the case that a just person's motivating thought
should always include the three-fold grounds sketched
above.
Secondly, this objection seems to ascribe to Liberal
Contractualism the view that the prime motivational mover
is abstract principles, and that this motivation is
transferred by some mechanism akin to derivation. This
view seems mistaken, on at least two counts. Firstly,
Contractualism of the form sketched here - and indeed
familiar from John Locke onwards - does not hold that the
principles of legitimacy are algorithmically generated
from some original situation, hypothetical or otherwise.
The role of consent, suitably specified, is to test
principles generated elsewhere, by creative and
historically informed contributors to political thought.
Similarly, just institutions are not derived from these
principles, since the principles are standards for
legitimacy, not fountains of institutional design.
Neither principles nor institutions are theorems
derivable from axioms. And the assumption that motivation
flows from abstract principles to concrete particulars
goes against the method of reflective equilibrium, by now
a (contested) commonplace of moral methodology (Rawls
1971: 20 and passim; Daniels 1996).
The method of reflective equilibrium applied to
normative theory seeks to secure consistency among our
commitments to considered moral judgements at various
levels of generality. Reflective equilibrium will often
build on local norms in the sense of norms that are
shared and accepted in the population concerned;
nevertheless, such norms will often be general in subject
matter. The considered judgements may be judgements about
particular cases; but also general and vague principles
e.g. about the value of freedom and equality, and the
injustice of slavery; as well as second-order judgements
about conditions on moral judgements, such as what counts
as inappropriate grounds for moral claims.
This method starts, therefore, with our commitments
both to particular practices and judgements, and to
abstract principles. On the contractualist account,
justification of a conviction consists in showing its
logical relations to other beliefs and moral judgements.
The relation between general or abstract principles and
judgements about particular situations need not be one
that channels moral motivation from the top down. We are
already motivated to act on our moral judgements at all
levels of generality -- even though our commitment to any
particular judgement, and our preparedness to act on it,
may be strengthened by becoming aware of these relations
Reflective equilibrium is achieved by bringing these
various judgements to bear on one another, seeking to
adjust them to one another in order to remove
inconsistencies and settle conflicts among them. But
attention to more general or abstract principles do not
necessarily entail a jump to some stance outside our
practices and considered moral views, as long as there
are "shared" norms at various level of
generality and principle. Thus reflective equilibrium
does not necessarily apply universal principles
"from the outside", but "from the
inside".
Furthermore, a complete justification of our
obligation or duty to comply with the rights and duties
of our roles requires both a thorough account of the
existing pattern of expectations, rights etc., we are
part of, and an argument showing that this set of
institutions satisfies general principles. Often we will
not need to make this further argument, but that is not
to say that our public culture/shared conception of
society manages without it.
On this account, then, particular duties do not need a
foothold to enter this theory: to the contrary,
particular duties are part of what the theory takes as
its subject. I have suggested that there is no reason why
such contractualist theories prohibit legitimate
institutions from including such particular duties. But
whether any particular project or any particular
conception, say of the institution of citizenship, is
permitted, is of course a different question -to be
determined by considering the set of institutions of
which this office is a part.
IV Conclusion
I have considered two criticisms raised against a
Liberal Contractualist defence of moderate nationalism,
characterised by limited partiality for fellow nationals
or fellow citizens, and loyalty to the laws and
institutions of one's own society. Liberal theories are
thought to disallow special treatment to groups of
individuals, hence unable to account for special claims
among compatriots. In response, I have argued that there
is in principle room for deviation from egalitarian
shares within contractualism - though the drastic
interdependence characterising our world makes the claims
for equal shares less rejectionable. Liberal theories are
also considered unable to account for political
allegiance. I have argued that the Natural Duty of
Justice can provide the requisite justification,
rebutting or deflating various criticisms along the way.
To conclude these discussions concerning the
relationship between principles of justice and
participation in partial and particularistic
institutional practices, we might recall Rawls'
discussion of how citizens may express their "sense
of justice". On this view, acting on a sense of
justice does not only mean a commitment to two very
general principles of justice in abstracto, or to
abstract constitutional principles. Rather, the sense of
justice is
"an effective desire to comply with the existing
rules and to give one another that to which they are
entitled." (Rawls 1971: 312)
How do we act on a sense of justice within an existing
society, with our day-to-day lives shaped by and
interwoven in multiple practices and institutions? By
interacting with those other individuals, far and near,
with whom we jointly create institutions, goods and
expectations, honouring their trust that we will indeed
do as expected.
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Footnotes
*
For discussion of this claim cf. Gellner 1983,
Buchanan 1991 and others.
[1]. For book
length discussions cf. Miller (1995), discussed in
Symposium on Miller's On Nationality 1997 and Miller
(1997) and Tamir (1993). Collections of articles include
McKim and McMahan (1997), Nussbaum and respondents (1996)
and The Monist: 82, 3, July 1999. Earlier
contributions to this issue include Sidgwick (1919),
Lichtenberg (1981), Beitz (1983), Pogge (1992, 1994a).
[2]. cf.
"universalist nationalists" (McMahan 1997);
"moderate cosmopolitanism about justice"
(Scheffler 1999), "moderate nationalism"
(Nathanson 1997).
[3]. It goes
beyond the scope of this article to discuss whether each
of these authors fall prey to the objections addressed
below - I am here concerned with sketching how one such
theory may respond.
[4]. For discussion
of this claim cf. Gellner (1983), Buchanan (1991) and
others.
[5]. Liberal
Contractualism is thus not an example of the
abstract political philosophy criticized by David Miller
(cf. Miller 1997: 71).
[6]. Scanlon
(1978: 102).
[7]. For
different sorts of criticisms, and defenses on other
grounds: Gutmann 1985; Cohen 1986; Buchanan 1989; Caney
1992; Mulhall 1994; Mulhall and Swift 1996.
[8]. John Rawls
(1978).
[9]. cf.
MacIntyre (1983, 1984); Beitz (1983); Nussbaum and
respondents (1996); and of course Sidgwick (1919).
[10]. Nathanson
(1989, 1997); McMahan (1997); Freeman this volume.
[11]. My
exploration here pursues a distinction noted eg by Thomas
Hill, between formal and substantive impartiality (Hill
1991: 47); and Brian Barry, between first-order and
second-order impartiality (Barry 1995: 11). Cf. McMahan
(1997) and Freeman in this volume. I deny the strong
presumption for first-order equality of treatment (Barry
1995: 70).
[12]. I here
summarise arguments made in Follesdal (1991). See Hurka
(1997: 154) for a similar point about focussing on the
distribution of goods internal to a practice.
[13]. For
details, cf. Follesdal (2000). I draw on Scanlon (1996),
Temkin (1993, 1995).
[14]. Scanlon
notes (1988, 12) that this argument is weak: "the
force of appeals ... depends on a prior claim that as
participants in a cooperative scheme the individuals in
question have equal claim to the fruits of this
cooperation. This is an appealing moral idea, but a
controversial one to serve as the starting point for an
argument in support of a particular conception of
justice." My account in the following seeks to make
the premise more acceptable.
[15]. Several
authors on global justice make similar points: Beitz
(1979), Pogge (1994b), Lichtenberg (1981); and cf. Miller
(1995: 104-5).
[16].
Follesdal (1997, 2000).
[17]. As may
other reasons, cf. Scanlon (1998: 177-88).
[18]
For further reflections, cf. Freeman this volume.
[19]. Scanlon
discusses these issues in defense of a "Principle of
Established Practices". Scanlon (1998: 339).
[20]. For
further, decisive clarifications on the communitarians'
misdescription of liberalism evidenced in these quotes,
cf. Caney (1992).
[21]. On
this conflation, cf. Scheffler (1986) and Herman (1983).
[22]. Rawls
(1971: 337), and O'Neill (1975).
[Date of publication in the ARENA
Working Paper series: 15.09.2000]
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