Cooperation, Pervasive Impact, and Coercion: On the Scope (not Site) of Distributive Justice

It is widely known that in A Theory of Justice Rawls restricted the scope of distributive justice to the domestic context of a single polity.1 This restriction implies that citizens have responsibilities of distributive justice to each other that they do not have to foreigners. Rawls's readers widely thought that he had motivated this anticosmopolitan restriction, despite his commitment to the equal moral worth of all, on the basis of two assumptions. First, he assumed that principles of distributive justice come into play only within the context of society's “basic structure.” Only persons with a shared basic structure have claims upon and responsibilities to each other arising from considerations of distributive justice. Second, Rawls famously assumed that there is no global basic structure, that the societies whose basic structure is the subject of justice are “more or less self-sufficient associations” whose boundaries correspond to those of contemporary polities. This was the argument that Rawls's readers thought was implicitly backing the restriction of justice's scope in his Theory of Justice: since “the primary subject of justice is the basic structure of society,” and since there is no global basic structure, the scope of justice is domestic.2 The force of this Rawlsian basic structure argument3 concerning the scope of justice hinges on what exactly is meant by “basic structure” and why it is the primary subject of justice. There are at least three distinct ways in which the institutions constituting society's basic structure can be defined, each with some textual support in Rawls: the basic structure might be said to comprise (1) the institutions that determine and regulate the fundamental terms of social cooperation; (2) the institutions that have profound and pervasive impact upon persons’ life chances; or (3) the institutions that subject persons to coercion. These three defining criteria are analytically distinct and, as such, may turn out not to be coterminous in practice. Each criterion also specifies the scope of society in a distinct way: a society (with a single basic structure) might comprise the set of persons (1) engaged in a scheme of social cooperation regulated by the same institutions, or (2) pervasively impacted by the same institutions, or (3) subject to coercion by the same institutions. Consequently, each criterion suggests a distinct way to reconstruct the Rawlsian basic structure argument about the scope of justice, corresponding to three theories concerning the proper subject of justice: what I call a cooperation theory, a pervasive impact theory, and a coercion theory. This article examines each of these interpretations of a Rawlsian theory of justice and assesses their impact for global justice. By principles of distributive justice I mean, at the very least, comparative principles concerned not merely with how individuals fare or are treated in absolute terms, but also in comparison with others. In other words, they are relational principles making demands of equality. (Rawls's difference principle is one such comparative principle; my argument is not specifically tied to it.)4 My thesis is that any plausible interpretation of any of the three theories implies that principles of distributive justice are global in scope. Beyond this substantive conclusion, the article makes four further contributions to the burgeoning literature on the relation between Rawlsianism and global justice. First, it clears up two important confusions in anticosmopolitan appropriations of the cooperation theory. The first confusion is between the site and the scope of justice: the basic structure is the site but does not necessarily limit the scope of justice. The second concerns three different senses in which justice might be said to “require” a basic structure: it may require a basic structure in the sense that it presupposes one before its demands arise, includes (and so constitutively demands) one as a constituent part, or instrumentally demands one as a means to fully realize justice. Anticosmopolitans often assume that justice presupposes a basic structure, i.e., that it is an “existence” condition rather than instrumental condition of justice. I shall demonstrate that, while this assumption is consistent with the pervasive impact and coercion theories, it is not consistent with the cooperation theory: the cooperation theory, properly understood, shows justice to demand a basic structure as one of its instrumental conditions. The result is that, on the cooperation theory, the site and scope of justice do not coincide. It is only when the basic structure is an existence condition of justice that it is both the primary site of justice and that its existing boundaries limit justice's scope. Second, the article demonstrates that although the coercion theory suggests that the basic structure both is the site and determines the scope of justice, the most sophisticated recent formulations of the theory (by Michael Blake and Thomas Nagel) nonetheless fail to secure the anticosmopolitan conclusions its partisans wish to draw. Blake's anticosmopolitan argument fails to address the interstate system of border coercion, while Nagel's deployment of the coercion theory rests on a perverse normative principle.5 Third, the current debate on global justice has to some extent been obscured by its complexity and sheer volume. By systematically mapping out the terrain of one of its most important areas, namely the relation between the basic structure and the scope of justice, the present article clarifies how the failure adequately to distinguish between the cooperation, pervasive impact, and coercion theories has led to confusion. It might be possible, of course, for anticosmopolitans to combine the argumentative strategies and normative premises of the three theories, appealing to the strengths of each in order to compensate for the weaknesses of the others. Indeed, the most sophisticated statement of Blake's coercion argument seeks to meet objections by incorporating elements of the other two theories. This concatenation, however, far from resolving matters, simply suffers from all the difficulties that each of the three theories individually poses for anticosmopolitans. Finally, though I do not directly address Rawls's argument in The Law of Peoples, my analysis of Rawls's theory of justice poses a significant challenge to Rawlsians who take that work as their point of departure for relating Rawls's theory of justice to the globe. In Law of Peoples, Rawls responded to cosmopolitan appropriations of his theory of justice by explicitly arguing against the view that distributive justice is global in scope, this time on fresh grounds. He now appealed to the moral integrity of distinct “peoples” with “common sympathies” (à la John Stuart Mill) and the value of toleration for nonliberal peoples. However, although the relation between Rawls's Law of Peoples to his theory of justice as fairness remains hotly contested,6 no one can deny the centrality of the notion of the basic structure to his theory of justice. Indeed, Rawls's thesis that the basic structure is the primary subject of justice is routinely cited as one of his most fundamental and enduring contributions to political philosophy. As such, if my contention is correct, i.e., if any plausible interpretation of this central component of a Rawlsian theory of justice implies that justice is global in scope, then anticosmopolitan “Law of Peoples Rawlsians” must face the fact that a central component of a Rawlsian theory of justice stands against them. The Rawlsian basic structure argument for the domestic restriction of the scope of justice is deceptively simple: The primary subject of justice is society's basic structure. A basic structure global in scope does not exist. Therefore: The scope of justice is not global. Much debate has focused on the second, empirical premise. Rawls's assumption of closed, self-sufficient societies, for example, has been forcefully challenged by cosmopolitans who point to contemporary levels of global interdependence; skeptics, in turn, have challenged the significance of those levels.7 But for Rawlsians advancing the basic structure argument, the debate concerning levels of globalization is somewhat beside the point: the relevant fact is not whether there is interdependence, but that there ostensibly is no societal basic structure at the global level.8 This is the relevant fact because the starting point of Rawls's theory is that the basic structure is the primary subject of justice. Thus before the empirical premise can be evaluated, the terms of the normative premise must be clarified. Everything turns on what being the subject of justice means, what exactly the basic structure is, and what the justification for the argument's first premise is. When Rawlsians say that the basic structure is the primary subject of justice, what they normally mean is that the principles of justice appropriately regulate or apply to the institutions of the basic structure only, i.e., that the basic structure is the primary site of justice. The problem for the basic structure argument, however, is that its second premise and the conclusion assume that “subject” refers to the appropriate scope of justice. The site of justice is not the same as its scope: the site of justice refers to the kinds of objects (individuals’ actions, individuals’ character, rules, or institutions, and so on) appropriately governed by principles of justice, that is, to which the principles of justice rightly apply, whereas the scope refers to the range of persons who have claims upon and responsibilities to each other arising from considerations of justice.9 For the basic structure argument to be valid, its first premise cannot merely be a claim about site, but must also imply something about scope. In particular, its validity requires showing that the boundaries of the basic structure qua site of justice somehow limit the scope of justice to the range of persons whose lives are regulated by the existing basic structure. This equation of scope with site is what I shall call the site/scope thesis; the point here is that it involves a substantive claim in need of justification. It might be thought that the site/scope thesis could be secured by arguing that, since the basic structure is the primary site of justice, justice requires a basic structure, which in turn implies that for principles of justice rightly to regulate the relations between persons, their interactions must already be regulated by a basic structure.10 That thought is misleading, however: it relies on an ambiguity between three senses in which justice might be said to “require” a basic structure. Justice may require a basic structure in the sense that it presupposes the existence of a basic structure before its demands arise; in the sense that it includes (and so constitutively demands) a basic structure as one of its constituent parts; or in the sense that it instrumentally demands a basic structure as a means for justice to be fully realized. Another way to put this is to say that a basic structure may be a condition of justice in one of three different senses: the first sense specifies an existence condition, the second specifies a constitutive condition, and the third specifies an instrumental condition of justice.11 Only the first sense of “require,” corresponding to a necessary existence condition, limits the scope of justice to where a basic structure already exists; the second and third senses limit the scope of justice only to where a basic structure could exist. It is thus crucial to see the fundamental difference between existence conditions, on the one hand, and constitutive and instrumental conditions, on the other. If a necessary existence condition of justice is missing, then demands of justice do not arise and the scope of its application is thereby curtailed; but if a necessary constitutive or instrumental condition is missing, justice precisely demands the realization of those conditions. A necessary constitutive or instrumental condition merely imposes feasibility limits on the scope of justice. The upshot is that, in order to defend the site/scope thesis, i.e., in order to show that the scope of justice is limited to the range of persons whose relations are regulated by an already existing basic structure, it must be shown that the basic structure is an existence condition of justice. If the basic structure is merely a constitutive or an instrumental condition of justice, then justice may demand that there be a (just) basic structure. In fact, I shall argue, it is only according to the pervasive impact and coercion theories of distributive justice that the basic structure could be an existence condition. By contrast, the cooperative theory rightly understood, contrary to the assumption of many anticosmopolitan Rawlsians who appropriate it, implies that the basic structure is an instrumental condition of justice. As a result, on any of the three interpretations of a Rawlsian theory of justice, justice is global in scope. On the one hand, the pervasive impact and coercion theories show why the scope of justice extends and only extends to the range of persons whose interactions are already regulated by a basic structure. But both theories’ accounts of the basic structure imply that a global basic structure exists. On the other hand, the cooperation theory renders plausible the claim that a global basic structure does not exist. But its justification for why the basic structure is the primary site of justice also shows why the scope of justice is not limited by an existing basic structure. The cooperation theory rightly understood shows that the existence condition of justice (which for this theory is social interaction) obtains at the global level as well. Rawls's official definition of the basic structure centers on the notion of social cooperation: after saying that justice as fairness conceives society as “a cooperative venture for mutual advantage,” Rawls defines society's basic structure as comprising “the way in which the main political and social institutions of society a fit together into one system of social cooperation, and the way they b assign basic rights and duties and c regulate the division of advantages that arises from social cooperation over time.”12 These three elements are what we might call the fundamental terms of social cooperation. The institutional components of the basic structure that Rawls explicitly mentions all regulate one or more of these three fundamental terms. He mentions: the “political constitution,” which determines how major political institutions and branches of government fit together, and which assigns basic legal rights and duties to persons; the “legally recognized forms of property,” which, by determining the nature of property rights, help determine the economic structure and regulate the division of goods; the “structure” or “organization of the economy” itself, which refers to the nature of markets and ownership of the means of production (as well as, presumably, tax law), and which therefore helps determine how the division of goods is regulated; and, finally, “the nature of the family,” which refers to the legal rights and duties of equal citizens in their roles as spouses, parents, and children.13 Rawls's official definition of what the basic structure is lends a certain plausibility to the second, empirical premise of the basic structure argument. Although there may indeed be high levels of global interdependence, on this interpretation the argument's second premise simply claims that there are no global institutions that regulate (in any significant way) how major political and social institutions (a) fit together to form a system of social cooperation, (b) assign basic rights and duties, and (c) regulate the division of advantages arising from social cooperation globally. The major political and social institutions that regulate these three fundamental terms are domestic institutions. The account also provides a particular interpretation of the first, normative premise of the argument: it suggests that when Rawls says that the primary subject of justice is the basic structure, he means that the principles of justice should primarily regulate only the way in which major political and social institutions fit together in the system of cooperation, assign basic rights and duties to members of society engaged in social cooperation, and regulate the division of advantages arising from social cooperation. This clearly is a cooperation theory of distributive justice: the principles of justice are meant only to govern the fundamental(publicly recognized) terms of social cooperation.14 This implies that, as Rawls's discussion of the family makes clear, principles of justice are not meant to govern the internal life of institutions or associations, even if they are themselves institutional components of the basic structure.15 So the division of goods within a family, within a firm, or within the branches of government are not subject to Rawls's difference principle; the difference principle applies to the regulation, by these institutions, of the division of goods in society as a whole. As Rawls puts it, the difference principle holds, for example, for income and property taxation, for fiscal and economic policy. It applies to the announced system of public law and statutes and not to particular transactions or distributions, nor to the decisions of individuals and associations, but rather to the institutional background against which these transactions and decisions take place.16 Rawls's contention also implies that distributive justice is not primarily an allocation of goods problem; as Samuel Freeman has emphasized, it is concerned in the first instance with “fairly designing the system of basic legal institutions and social norms that make production, exchange, distribution, and consumption possible.”17 The question is how Rawls justifies the premise that the basic structure of society is the primary subject of justice. His first justification—the justification to which the cooperation theory appeals—is a frankly instrumentalist justification. It centers on the indispensable role of society's basic structure in securing the just background conditions that make possible fair transactions and agreements between individuals and associations. Rawls's point here arises in response to the libertarian view of justice defended by Robert Nozick. Rawls argues that, starting with an initially just socioeconomic state of affairs, subsequent states of affairs resulting from fair transactions and agreements will also turn out to be just, as Nozick maintains, only if just background conditions, which make fair transactions and agreements possible in the first place, are preserved over time.18 The problem, Rawls argues, is that the accumulation of individually fair transactions and agreements will, over time, causally undermine the background conditions that make fair transactions and agreements possible in the first place. It is thus the indispensable role of the institutions of the basic structure to maintain background justice, in order to ensure the fairness of the system of social cooperation. As Rawls puts it, the conditions necessary for background justice can be undermined, even though nobody acts unfairly or is aware of how the overall result of many separate exchanges affects the opportunities of others. There are no feasible rules that it is practicable to require economic agents to follow in their day-to-day transactions that can prevent these undesirable consequences. These consequences are often so far in the future, or so indirect, that the attempt to forestall them by restrictive rules that apply to individuals would be an excessive if not an impossible burden.19 This is what Liam Murphy has called a “division of labor” argument: given that background justice can be fully maintained only via institutions that regulate the fundamental terms of social cooperation, and given that applying the principles of justice exclusively to the institutions of the basic structure is the best means for realizing justice (since applying them elsewhere would place excessive burdens on individuals), the principles of justice only appropriately apply to the institutions of the basic structure. (In particular, they apply to the way in which the institutions of the basic structure determine the fundamental terms of social cooperation by regulating how those institutions fit together, assign basic rights and duties, and regulate the division of advantages.) Thus the thesis that the basic structure is indispensable to justice—that justice requires a basic structure—encompasses two distinct claims, one about necessity, the other about optimality: the basic structure is instrumentally necessary for the full realization of justice; and applying principles of justice exclusively to the basic structure is the best means for realizing any degree of justice. Hence the principles of justice do not appropriately apply directly to the conduct between individuals and associations in their interactions with each other.20 Another way to put this is to say that a basic structure is the indispensable means by which a system of social coordination or interaction could become a fair system of social cooperation. Rawls explicitly distinguishes between these two concepts: as he puts it, while mere social coordination is compatible with, example, by by an absolute central social cooperation the of fair terms of cooperation is social coordination or interaction on fair terms and on the of the system of The instrumental of a basic structure for realizing the of social cooperation, with the fact that applying the principles of justice only to the basic structure is the best way to realize a fair system of cooperation, is what justifies the first premise of the basic structure argument to which the basic structure is the primary subject of of how one puts it, the of the division of argument, for the cooperation theory, is the basic structure is an instrumental condition of The problem for anticosmopolitans is that, while the second premise and conclusion of the basic structure argument assume that the of refers to the scope of justice, the cooperation justification for the first premise only that the basic structure is the site of justice. For the basic structure argument to be valid, its first premise must a claim about scope. In other words, its validity requires a consistent with the cooperation theory, of the site/scope As I to since for the cooperation theory the basic structure is an instrumental and not existence condition of justice, there is no to be The question is what the cooperation theory can say about the scope of justice. Only a interpretation of the theory would have it say that claims and responsibilities of justice only arise between in a shared scheme of social cooperation for mutual regulated by a shared basic that a system of social cooperation is not a mere system of social coordination or it is a fair or just system of social in other words, a that is a constituent of Rawlsian justice. The interpretation is because by the scope of distributive justice to those persons who in what is in fact a scheme of social cooperation, it a constituent of the of justice, namely the fairness of social for one of its existence conditions (which must be before the demands of justice as fairness This of the existence and constitutive conditions of justice a perverse and in of the By the of social cooperation to (and the scope of application of the itself, the interpretation implies that demands of distributive justice arise only between persons whose social interactions are already on fair terms, i.e., that demands of justice would not arise for persons whose social interactions are It is of course, that justice that social interaction be But justice does not require fairness in the sense of the fairness of social interaction before its demands arise; it demands the fairness of social interactions as a constituent of could the first premise of the basic structure argument be understood to on any plausible of the cooperation theory, that since social cooperation a basic structure, then a shared basic structure is a for relations of justice to This would also be a interpretation of the cooperation theory, an because it the existence and instrumental conditions of justice. three where there no interaction at all, where there social coordination and a basic structure but no background justice, and where there social coordination but no basic structure. to the cooperation theory, where there is no social the demands of justice do not on the cooperation theory the point of justice is to regulate social social interaction is a necessary and existence condition of justice: the cooperation theory does not demand that social interaction in order to for justice to do its justice only to do its work when social interaction already exists. But the cooperation theory cannot say the same about the basic structure. there is social interaction and a basic structure the cooperation theory demands that the basic structure be and just in order to realize justice in the system of social interaction and to make it a fair system of social cooperation. The same instrumental relation in the third where there social interaction a basic structure: the cooperation theory demands the of a just basic structure, when a basic structure is in order to realize justice in the system of social The of the existence with the constitutive or instrumental conditions of justice, and in particular the failure to see the instrumental role of the basic structure, is the central with many of the cooperation theory. Samuel for example, argues that Rawlsian justice presupposes social which in turn requires “political all of which requires institutions of a basic and he that since there is no global basic structure, global principles of justice do not But on the cooperation theory, distributive justice does not social cooperation: as Freeman Rawls social cooperation also involves an of and fair terms of and, as such, a moral to any plausible cooperation theory, justice presupposes only social not cooperation. does justice require a basic structure in the sense of one before the demands of justice since the cooperation justification for the basic structure as the primary site of justice is for it the institutions of a basic structure, institutions of political cooperation that may be necessary to realizing justice, are instrumental conditions of Rawlsian justice, not existence Thus the fact that a basic structure is indispensable to background justice means that, where social interaction there to be a just basic structure to secure background justice. It does not mean that if a basic structure does not then there is no need for background justice. It is that, on the cooperation theory, principles of justice require a basic structure because such principles the appropriate of the and burdens of social But this is a not a The cooperation theory therefore cannot the anticosmopolitan basic structure argument about the scope of justice. to the cooperation theory rightly understood, the basic structure argument's first premise the primary subject of is but the argument or the first premise is The first premise is if it is a claim about the site of justice, but it is if it is about the scope of justice, which it must be for the conclusion to follow from the to the cooperation theory, the basic structure is the primary site of justice because it is the necessary means for fully realizing justice. However, because on the cooperation theory the basic structure is merely an instrumental condition of justice, the site/scope thesis turns out to be the scope of justice is given by the range of persons engaged in a system of social interaction justice of which demands a just basic structure) that is or could become a scheme of social cooperation. If a system of social interaction does