A constitution assigns independently existing responsibility

One reason why some find monism more appropriate is if they regard a constitution and other institutions from the point of view of ‘assigned responsibility’: ‘special duties are devises whereby the moral community’s general duties get assigned to particular agents’ (Goodin Reference Goodin1988: 678). Constitutions on this view are only instrumental for certain duties that can be specified and justified independent of our institutional relationships (Nagel Reference Nagel2005). A constitution may for instance simplify our personal obligations of mutual aid, opening up space for us to pursue other duties and own projects. State borders just divide up this general obligation in a form of division of moral labour, so that each individual takes most responsibility for other citizens of their own state. Some interpret Rawls to only rely on such considerations when taking on the BS as a central subject matter (Murphy Reference Murphy1999; cf. Cohen Reference Cohen1997: 16; Julius Reference Julius2003: 326–7).

This is a flawed interpretation of Rawls (Pogge Reference Pogge2000; Scheffler Reference Scheffler and Sypnowich2006), for instance because Rawls’ theory does not relieve citizens of all duties of justice. There are more reasons on behalf of Rawls’ focus on the BS.

A constitution resolves coordination problems

Some institutions may help provide beneficial conditions for interaction – such as property rights and contractual obligations (Nagel Reference Nagel2005: 137). These institutions may thereby also increase our duties. This occurs when institutions help resolve certain collective action problems (Murphy Reference Murphy1999: 253; Pettit Reference Pettit, Shapiro and Macedo2000, 110–13; Buchanan and Keohane Reference Buchanan and Keohane2006: 408). A constitution may establish institutions that provide assurance about others’ compliance in several ways, such as by means of independent courts, compliance monitoring, or sanctions. Such institutions reduce the likelihood of free riding, and thereby remove one excuse citizens may have for doing their share. This may be why Nagel holds that sanction mechanisms maintained by states make the BS normatively significant (Nagel Reference Nagel2005).

Such coordination benefits are valuable, but on their own they do not support claims that substantive principles of distributive justice apply to them.

Constitutional and institutional division of labour

The BS may contribute to solve a special kind of coordination problem through means of what Samuel Scheffler calls an institutional division of labour (Scheffler Reference Scheffler and Sypnowich2006; cf. Rawls Reference Rawls1993: 268–9). The BS helps citizens secure a just distributive pattern as a result of the indirect, small and opaque effects of any individual action. The point is not that the constitution allows individuals to live with utter disregard for what justice requires – but rather that they may pursue their own projects more fairly by allocating their responsibility for background justice with the BS. Note that this argument does not support distributive principles of justice that constrain permissible inequalities. This point is especially relevant when considering charges that international justice leaves no room for such private or indeed national projects; we return to this below.

Domestic constitutions have special effects

Authors following Rawls often argue that the BS affects the normative claims its subjects can make among themselves. Any particular BS could be otherwise, in that other BSs would allocate legal powers in other ways among its subjects. Other BSs would thus engender different distributional patterns of benefits and burdens. The power to create and shape such a BS is thus of great importance.

Some such claims hinge on the view that the BS is a social construction in important senses. The domestic BS has a large impact, in several ways. A first important contribution of the BS is that it creates new goods through institutionalised cooperation. Rawls specifies these in the form of certain ‘Social Primary Goods’, (SPG). They are various legal powers and immunities: basic rights and liberties, institutional opportunities, and prerogatives of office and position, along with income and wealth (Rawls Reference Rawls and Freeman1988).

Many of these goods are constituted by the constitution – regarding the constitution as a complex web of social practices. The SPGs are examples that the BS does not simply serve instrumental functions with regard to securing the distributive justice of independently existing goods and burdens. The question of how the SPG should be distributed only arises within ongoing institutions that constitute those goods, and among those who live under the constitution that creates them.

The BS affects individuals’ life chances profoundly. Consider how these SPGs – legal powers, career opportunities, income and wealth – all have a wide range of effects on individuals’ objective and subjective level of well-being. The BS drastically shapes individuals’ conception of the good life, their expectations and aspiration levels.

I submit that these reasons support Samuel Freeman’s claim that constitutive institutions have such a composition and structure individuals’ lives in such ways that issues of distributive justice arises (Freeman Reference Freeman, Martin and Reidy2006). Still, critics may ask why egalitarian claims are normatively salient among those subject to such a constitution, at least in a domestic BS?

Coercion of a kind that must be normatively legitimate

Another aspect of the BS is that it is maintained with a particular form of state coercion. Considerations of justice and legitimate rule primarily arise for questions of how to regulate such coercive power and influence that is in practice inescapable, or that otherwise subject some individuals to the arbitrary will of others (Abizadeh Reference Abizadeh2007; Cavallero Reference Cavallero2010). The powers constituted and specified in a constitution affect an individual in potentially objectionable ways: they limit individuals’ options, and may subject them to domination. The BS is a particular kind of coercion, claimed to be carried out ‘in the subjects’ name’ (Nagel Reference Nagel2005: 121). What might this mean? One plausible explication is that a constitution must satisfy standards of normative legitimacy in order to create political obligations. Such standards must give expression, on Nagel’s view, to a commitment to treat all as equals. Certain inequalities are thereby rendered indefensible:

One way to defend equal shares among equals when it comes to SPGs may be based on how SPGs are constituted. These goods result from cooperation in maintaining a constitution; treatment as equals of those who create these goods require that each get equals shares.

To summarize: there are several reasons why constitutions, as central parts of domestic BSs, should satisfy principles of distributive justice. They have large impact on individuals, and the goods they create are constituted by the participants’ arguable equal role in maintaining shared practices. Only when each receives an equal share does a duty of justice apply to them so as to create a political obligation to comply with the BS.

I submit that quite similar arguments also support claims to bear principles of distributive justice to bear on the Global Basic Structure – and onto a ‘global constitution’ insofar as such a complex set of practices exist.

Objection: Domestic, not ‘international or global’ constitutions impact on individuals

One argument in defence of Anti-Cosmopolitan views is that international institutions largely regulate inter-state matters, and a limited number at that. The effects there are on individuals are hence the responsibility of state governments.

Two central causal factors that help explain domestic inequality are state capacity and domestic political will, e.g. to ensure a well-regulated market economy and redistributive taxation policies (Milanovic Reference Milanovic, Held and Ayse2007: 40). These domestic factors are not a result of international rules, but should instead be regarded as domestic responsibilities. Similarly, economic inequality among states is difficult to explain as the result of international institutions, argue Anti-Cosmopolitans. Some alleged factors include neo-liberal trade regimes, modernization processes, and dependency theories, and at least some of these are matters of domestic choices as regards economic policies, export strategies, etc. The upshot is that individuals have only weak distributive claims on international institutions: such claims should instead be addressed to compatriots and their domestic elites who decide on the state’s economic strategies.

A response to this Anti-Cosmopolitan argument may firstly agree that states differ in their opportunity spaces and in how these are exploited by the domestic authorities. But it does not follow that such a GBS as there is falls outside the scope of principles of distributive justice. We may still insist that the domestic opportunity spaces and the choices made are also shaped by the GBS, be it concerning the economy, or trade rules that shape negotiations between multinationals and host governments, or the impact on global markets by agricultural subsidies in rich countries, or the rules for global capital mobility. Such rules affect the options for many states, ranging from production to taxation. Furthermore, we must consider the indirect effects of the GBS. Much harm is no doubt wrought by the quality of domestic institutions (Risse Reference Risse2005: 356–79). But it does not follow that outsiders can do little about this. To the contrary, many may argue that outsiders are doing much to maintain the present situation. International rules affect the political will of many domestic governments, who depend on access to international markets to buy weapons and make loans, and to sell the territory’s natural resources. Such legal privileges are crucial parts of the GBS (Pogge Reference Pogge2008). If such rules failed to recognise ownership claims of dictators to these natural resources, the governments in place would presumably have somewhat different preferences. Sovereign states are partly constituted by the ‘Global Constitution’.

A further response is that such claims reify statehood and domestic constitutions. The powers and immunities of states are themselves partly defined by international law and institutions, indeed by what some see as a Global Constitution. On the view sketched here, states are complex sets of legal rules and practices – and these are parts of our current GBS. ‘Sovereignty’ as a bundle of legal powers is constituted by the GBS; the distribution of benefits and burdens that result from such bundling should therefore not be regarded as only the result of domestic institutions. Several legal powers and immunities define the state as an international legal actor and specify how its borders and citizens are treated by other actors such as states. Statehood is a question of satisfying certain criteria set by states jointly, laid out as conditions of international law concerning population, territory and autonomy. Sovereignty itself may therefore be regarded as Social Primary Good. To be a state in the global legal order and on the international arena is therefore to be so constituted by other states. It is international rules that allow governments to establish treaties, acquire international debts, etc.

Against this view, Freeman might be thought to offer an objection: ‘peoples can and have controlled territories without a need for any sort of norms of cooperation or even recognition by other peoples at all… a people’s control of a territory is not necessarily cooperative or in any way institutional’ (Freeman Reference Freeman, Martin and Reidy2006: 248). However, the historical claim is not relevant for the view laid out above, about the present institution of sovereignty – which centrally includes recognition by international law. Likewise, the ability of a state to enter treaties is not simply a matter of a government declaring itself to be a state, but also on the fact that these authorities satisfy certain conditions identified in international law. I submit that the GBS includes such international rules about sovereignty, and a wide range of background rules – arguably with ‘constitutional features’ – for reaching specific agreements on a wide range of issues. Rules for trade, investment, currency exchange or travel have great effects on individuals, and share several of the normatively salient features of domestic constitutions.

The rules of the GBS impact fundamentally on individuals’ starting points, life chances and preference formation, though often with the rules that constitute states as intervening causes. Importantly, these rules are malleable: the European Union causes changes to these rules, reconfiguring the state system and the concept of ‘sovereignty’ in Europe. It is thus of urgent practical relevance to ask for the justification why the rules of state sovereignty carve out rights and immunities the way they currently do.

Objection: Global institutions – and a ‘global constitution’ – are supervenient agreements among states

While there are global or international institutions, some hold that these are not ‘basic’ and should as such not be subject to principles of distributive justice (Freeman Reference Freeman, Martin and Reidy2006: 247). There are empirical and normative flaws in this argument. Freeman firstly holds that states remain the central authors of international regulations (Freeman Reference Freeman, Martin and Reidy2006: 247). But the creation and the substantive contents of such regulations are in fact to a certain extent not controlled by state governments. One obvious area is customary international law; but more generally Mattias Kumm argues that the obligations of international law are no longer firmly grounded in the specific consent of states and its interpretation and enforcement is no longer primarily left to states. Contemporary international law has expanded its scope, loosened its link to state consent and strengthened compulsory adjudication and enforcement mechanisms (Kumm Reference Kumm2004).

We witness a broad rise in international organizations and treaty bodies that enjoy a broad range of powers. And ‘as the decision-making powers of international organizations increase, both formally and in practice, the need for control of such powers increases accordingly’ (Ulfstein Reference Ulfstein, Klabbers, Peters and Ulfstein2009: 60). Even when states are in control, the chains of command and accountability from governments to their delegates are too long and opaque for meaningful citizen control and informed consent – which would seem crucial for the normative claim. Private parties increasingly engage in ‘private governance’ of the substance of treaties, which de facto leave governments with neither choice, exit nor voice. Consider the International Organisation for Standardisation (ISO) or transnational civil society organisations (Keck and Sikkink Reference Keck and Sikkink1998; Hall and Biersteker Reference Hall and Biersteker2002; Ruggie Reference Ruggie2004; Follesdal, Wessel and Wouters Reference Follesdal, Wessel and Wouters2008). In addition, many treaties evolve far beyond what the states could have expected: witness the law making by the European Court of Justice. Free trade and foreign investment are only two of very many issue areas that witness similar ‘dynamic interpretation’ (Sands Reference Sands2005: 8). The upshot is that Freeman’s description is empirically incomplete: the current web of international institutions does not exclusively consist of norms agreed among states. A weaker claim may be that states tacitly consent when they refrain from withdrawing from any particular treaty. But even this view is difficult to square with international law. Consider that article 54 of the Vienna Convention on the Law of Treaties also regulates the procedures for when and how a party may terminate or withdraw from a treatyFootnote ¹ – where such termination must be in conformity with the provisions of the treaty or by consent of all the parties.

These empirical worries raise some of the central normative concerns even more clearly: why should state consent render these international norms and institutions immune to principles of distributive justice? Governments’ consent can hardly be taken to express or indicate the acts of ‘peoples’ in ways that create any normative obligations or responsibility: Too many governments lack meaningful accountability mechanisms. It might arguably be better that only human rights respecting democracies were recognized as authors of such norms.

Objection: The nature of coercion is different domestically and globally

One reason to hold that state consent invalidates comparisons between a domestic BS and a set of international institutions is that the coercive nature of a domestic BS raises particular challenges of normative legitimacy. Since by hypothesis states consent to international rules and institutions – and whatever global constitution there is – there is no inter-national coercion in need of justification.

An objection to this claim challenges the conception of coercion. Several though not all states are de facto coerced to accept the existing international rules: exit from certain regimes is economically or politically impossible (Cavallero Reference Cavallero2010). Though the threat is not one of military intervention, consider that states face economic hardship outside the WTO.

A second Anti-Cosmopolitan argument grants this point about coercion, but objects that this kind of coercion is relevantly different from that exercised by domestic BSs (Blake Reference Blake2001: 280; Nagel Reference Nagel2005):

What difference might there be between these kinds of coercive practices? Nagel may – correctly – hold that the domestic BS enables stable expectations about the conduct of others, inter alia by means of threats of sanctions by domestic courts and police. Extending that point, the concern may be that absent global enforcement agencies, a GBS cannot really exist: it cannot stabilize expectations and provide assurance of states’ future actions. However, international enforcement may not be required. States do – surprisingly – tend to comply with treaty obligations to a significant degree, partly because these obligations have been internalized and accepted by several domestic significant actors, and non-compliance can signal lack of trustworthiness in general – toward other states, corporations – and the domestic population (Chayes and Chayes Reference Chayes and Chayes1995; Sands Reference Sands2005; Franck Reference Franck2006; Simmons Reference Simmons2009). In addition, even ‘non-binding’ international rules have some mechanisms for ensuring compliance (Guzman Reference Guzman2010; Guzman and Meyer Reference Guzman and Meyer2010). So the lack of strong international sanctions does not prevent the existence of a sufficiently robust GBS.

Another argument might draw from the need to create political obligations among subjects. I suggested that this is one reason why the BS must satisfy principles of justice which treat all subjects as equals. Nagel might argue that a GBS does not need to elicit such obligations of compliance based on a sense of justice, i.e. from a sense that the rules are normatively legitimate. However, such obligations do seem required to ensure expectations under the conditions of complex global interdependence of states and individuals. Actors must see the international institutions as normatively legitimate (Bodansky Reference Bodansky, Wolfrum and Roben2008: 309), or ‘protolegitimate’ (Julius Reference Julius2006: 182). Matthias Kumm likewise argues that this becomes even more important as state consent recedes as legitimating mechanism for international law (Kumm Reference Kumm2004: 907–8; Buchanan and Keohane Reference Buchanan and Keohane2006). I submit that similar normative challenge of justifiability and legitimacy seem appropriate to raise against international rules and institutions, and toward a global constitution, as toward the domestic BS. The issue is whether such coercion be defended as legitimate, i.e. as carried out ‘in the name’ of those subject to it.

Objection: Global distributive justice leaves no room for individual and national projects

A somewhat different kind of objection to accepting a GBS is that the requirements of global justice will be unreasonably demanding.Footnote ² There would seem to be a normative tension between maintaining a GBS that is justifiable toward all as equals, and the obligations citizens have toward compatriots and other associative obligations. Will not global impartiality ‘squeeze out’ and override any special duties that entail unequal shares? Some argue that 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 Reference Scheffler, McKim and McMahan1997: 197; cf. Miller Reference Miller1995: 60). Once cosmopolitans have ensured that institutions give individuals globally their due, nothing would be left to distribute among conationals (MacIntyre Reference MacIntyre1984: 6).

In response, several observations may be made. Firstly, this criticism ignores that I am here concerned with assessing institutions that shape projects and foster expectations. Conflicts between our projects and current distributive obligations, and principles of justice for a GBS will be much less frequent in a world where our projects and domestic BS have been shaped from childhood in light of just expectations. So the way to consider the normative significance of this tension must be by assessing its impact once interests and expectations are shaped by what appear to be permissible institutional arrangements at the domestic level that surround and shape us (cf. Piper Reference Piper1987; Railton Reference Railton1984; Nagel Reference Nagel1986; Pogge Reference Pogge1989: 101). While the GBS may give rise to claims of distributive justice, it remains an open question whether the claims of non-citizens is to equal shares – e.g. in the form of a ‘Global Difference Principle’, or to some less egalitarian principle that is still concerned to limit differences in income and wealth. Equal respect may well allow larger economic differences in a multi-level legal and political order, for instance to allow for the value of political autonomy (Follesdal Reference Follesdal2003). Moreover, such conflicts need not appear to us as alienating. The pull of justice will seldom appear as a requirement that we sacrifice our deeply held, clearly defined interests and values for the sake of abstract principles of justice. Instead, the conflicts may be experienced as tensions between particular rules of our social institutions and our relatively unspecified, yet strongly held values and commitments. Such conflicts are not between local, internal norms and standards ‘external’ to the communities (Walzer Reference Walzer1983: 33), but between norms and standards ‘internal’ to our practices at various levels of generality: ‘global’ notions of equality and freedom, as well as more ‘local’ norms within a domestic setting, where the similarity of the GBS with the domestic BS may in time strike us as reason to adjust our commitment to compatriots in favour of other subjects of our shared GBS.