II. Social Cooperation and Social Justice

The use of the term “distributive justice” to connote standards for assessing the distribution of income and wealth is relatively recent; it seems to have evolved out of the socialist critique of capitalism.⁷

In Anarchy, State, and Utopia, Robert Nozick says that the term “distributive justice” is not neutral, since it suggests a central distribution mechanism that doles out a supply of resources to people and redistributes resources among people when their individual choices fail to match some principle.⁸ Still, Nozick must have found the idea useful, since he entitles the central chapter in his book, covering eighty-three pages, “Distributive Justice.” I will use the term “distributive justice” as neutrally as I can: namely, to designate moral standards for assessing ongoing methods of distribution of rights to income and wealth that are implicit in any economic system. It is the sense in which I believe that both Nozick and Rawls used the term. A principle or conception of distributive justice applies to all existing income and wealth within an ongoing system of production, exchange, and consumption. It specifies standards for deciding how and whether income and wealth are justly distributed among individuals—who should have rights to what and in exchange for what (if any) contributions. The difference principle, the principle of utility, and the equality principle are all distributive principles insofar as they cover all the economic resources that exist in any economic system. So too are Nozick's libertarian entitlement principles, according to which (very roughly) rights in things are fairly distributed only if they are transferred by market exchanges, gifts, bequests, gambling, or some other voluntary mode of transfer by the person who holds those rights. Such common-sense precepts as “To each according to effort,” “To each according to contribution,” and “To each according to need,” when left unsupplemented, may not fit this definition of distributive principles. (For example, what if all needs are satisfied, or all efforts and contributions are rewarded, and there is still a remaining surplus?) Still, I presume these precepts can be made to fit the definition easily enough so long as we supplement each precept with some other (for example, the surplus remaining after all needs, efforts, or contributions are met might then be equally distributed, or distributed to maximize utility, etc.).

On this understanding, a people's duty to assist its own and other peoples so that their basic needs are met is not (by itself) a principle of distributive justice. For this duty, once satisfied, extends no further and establishes no further claim within the ongoing system of economic production and exchange. The same is true of duties to meet special needs of the handicapped; by themselves, these duties are not principles of distributive justice. In contrast, a principle of restricted utility which says “A society has a duty to provide a social minimum for all its citizens sufficient to meet their basic needs, and once basic needs are met, the economy is to be designed to distribute income and wealth so as to maximize utility” (or alternatively “to satisfy the principle of efficiency”) is a distributive principle; for it applies to and enables an assessment of the justice of the distribution of all wealth within the economic system.

Rather than providing a specific global distribution principle, Rawls provides an account of human rights, coupled with the claim that the basic needs of all individuals in the world are to be met, partly as a matter of their human rights. This provides the basis for a duty of peoples to assist “burdened peoples” who are unable to meet the basic needs of all their members. The “target” of the duty of assistance is the capacity of a people to be economically independent so that they may at least meet all citizens' basic needs, and become bona fide members of the Society of Peoples.⁹

At a minimum, a person's basic needs are those that need to be met to enable him or her to effectively exercise human rights. The human rights that Rawls mentions (initially) are: “the right to life (to the means of subsistence and security); to liberty (to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to property (personal property); and to formal equality as expressed by the rules of natural justice (that is, that similar cases be treated similarly)” (LP, 65).¹⁰

Here it is important to note that by “basic needs” Rawls is not just talking about subsistence needs that are protected by human rights—or what is needed so that people do not starve or perish from disease. In addition to human rights, Rawls intends that people should be able to “take advantage of the rights, liberties, and opportunities of their society,” which would require institutional rights and liberties, and economic means, that go beyond what is needed to exercise one's human rights.

Given the role of Rawls's idea of human rights in determining the extent of the duty of assistance, it is important to emphasize the basis for Rawls's account of human rights. Rawls is often criticized for not including certain liberal and democratic rights among the human rights: primarily equal rights of political participation, freedom of speech and expression, and freedom of association, all of which are among the basic liberties that are part of Rawls's first principle of justice.¹¹

Many critics believe that Rawls's list of human rights, in addition to being truncated, is arbitrarily drawn, with no solid basis. Here one can add to this list of complaints that, in the case of the basic liberties, Rawls appealed to a conception of persons as free and equal democratic citizens with the two moral powers.¹² The basic liberties were regarded as fundamentally necessary to the exercise and development of the moral powers, and to enable democratic citizens to freely pursue a wide variety of permissible plans of life.¹³ In the case of human rights, however, Rawls's list seems to be without any such foundation. Isn't Rawls's account of human rights then simply an appeal to unfounded intuitions?

Rawls apparently does not provide a conception of the person to ground his account of human rights, and more generally the Law of Peoples, because there is no shared conception of the person that will provide a basis for the public reason of the Society of Peoples. Decent societies, in particular, rely upon comprehensive religious and philosophical doctrines that will conflict with almost any conception of the person that might be acceptable to liberal peoples and other decent peoples. This does not mean, however, that Rawls's list of human rights is conjured out of thin air. It is a list of rights that, he says, is not distinctly liberal, and that all liberal and decent peoples can agree to on the basis of their liberal and decent comprehensive views. Moreover, the list does not depend upon a particular religious or philosophical doctrine, not even (Rawls contends) upon liberalism. Rather, it has a substantial foundation that is part of the Law of Peoples itself. What is the basis, then, for Rawls's account?¹⁴

Oddly, critics of Rawls rarely, if ever, discuss the substantial basis Rawls provides for his account of human rights: “What have come to be called human rights are recognized as necessary conditions of any system of social cooperation. When they are regularly violated, we have command by force, a slave system, and no cooperation of any kind” (LP, 68).

Rawls has nothing more to say about social cooperation in The Law of Peoples, but in Political Liberalism (PL, 16) he has this to say: First, social cooperation is by its nature voluntary, and involves an absence of forced servitude and other conditions that would prevent us from holding people responsible for their conduct. Second, social cooperation is to be distinguished from efficiently coordinated behavior, where people are working in a group, but their behavior is regulated simply for the sake of effectively achieving purposes that none of them may endorse. Prisoners in a work gang are not engaged in social cooperation, though they might work quite efficiently as a group (repairing roads, picking up trash, etc.). By contrast with efficiently coordinated behavior, the idea of social cooperation for Rawls assumes that each person has an idea of his or her good, and is benefited in some way that he or she would acknowledge by engaging in cooperation with others. Presumably, if a person's good were not in any way furthered by interaction, then his or her actions would not be rational or even voluntary. Finally, for Rawls social cooperation also involves an idea of reciprocity and fair terms of cooperation, which provide a sense of what is “reasonable.” These are norms that members of the cooperating group rely upon and use to guide their conduct and regulate the distribution of benefits and burdens among themselves. Moreover, the members mutually recognize these fair terms and refer to them not only to regulate but to criticize and assess one another's conduct. These terms are, in this regard, public standards, not just strategic norms.

For Rawls, then, social cooperation incorporates a distinctly moral component—a notion of fair terms of cooperation, understood as “reciprocity,” which provide standards of reasonableness. Rawls distinguishes reciprocity from mutual advantage, which can be explicated entirely in terms of a person's good and what is rational for her to do (the third aspect of social cooperation mentioned above). People who are engaged in social cooperation normally are not focused exclusively on their own good, in the sense that they are ready to take advantage of others and free-ride whenever circumstances permit. This does not mean that people have to be altruistic to cooperate with others; but they do normally have a sense of fairness or justice—a settled disposition to comply with terms of cooperation, and do their part, even on occasions when it is not to their benefit (so long as others manifest a like disposition). For Rawls, one thing that distinguishes “decent peoples” from “states” (as traditionally understood) is that they have moral motives and a sense of justice as a people, that enable them willingly to comply with their duties under the Law of Peoples, and not take advantage of weaker peoples whenever it seems favorable to do so.¹⁵

It is this sense of social cooperation that Rawls seems to rely upon in drawing up his list of human rights. The right to life, freedom from involuntary servitude, the right to hold and use at least some personal property, and other human rights that Rawls mentions are minimal reasonable terms necessary to social cooperation. The right to vote and the right to run for office, however central to democratic societies, are not necessary for social cooperation as such; other methods of decision making are compatible with social cooperation. Historically, most people in most societies have not enjoyed democratic rights, and even in societies where they do, these rights often willingly go unexercised. This option is not true of human rights generally. To contend that democratic rights of political participation are on a par with, and just as important as, the right to life, freedom from involuntary servitude, the right to hold personal property, and other human rights that Rawls mentions, is implausible and unreasonable. And while it may not be as unreasonable to say that liberal freedom of association and freedom of speech are equally fundamental to social cooperation, it is still far-fetched and unconvincing. Some degree of freedom of speech and of association surely must be a human right, and can be included under what Rawls calls the “right to liberty.” For example, fundamentalist Muslim societies that punish women for just talking with men who are not family members surely violate human rights. But Rawls denies that among the human rights must be included liberal freedoms of speech and association, with all that they include (for example, the right to defile or destroy national or sacred symbols, or enjoy pornography, or freedom of same-sex relations). To hold otherwise is not to take the idea of human rights seriously.

The idea of social cooperation also is central to Rawls's account of social justice. It underlies his distinction between “domestic justice” and the Law of Peoples. Moreover, the idea of social cooperation informs Rawls's account of the difference principle. What makes social cooperation possible for Rawls are the basic institutions that constitute “the basic structure of society.”¹⁶

Here it is crucial that, for Rawls, political cooperation under the terms of a political constitution, including the legal system that it regulates, is a central aspect of the basic structure of society. For Rawls, political cooperation is part of social cooperation; it makes social cooperation according to the terms of other institutions (particularly economic institutions) possible and is necessary to those institutions. (One important example: The institution of property is presupposed by economic cooperation; property is largely a legal institution and cannot exist—except perhaps in primitive form—in the absence of political cooperation according to the terms of a political constitution and a legal system.) When Rawls says that the political constitution is part of the basic structure, he does not just mean the procedures that specify how laws are enacted and that define offices and positions of political authority. He means more or less the entire legal system, including most public and private law, that is the product of the constitution in this procedural sense. Modern legal systems, such as the federal system in the United States, are made up of countless acts of legislation, administration, judicial precedent, and other legal rulings that are issued by the multiple legal bodies with lawmaking authority. An economic system that is regulated by the legal norms that are issued by the political constitution is also part of the basic structure. Here, of course, the legal norms of property, contract, commercial law, intangibles, and so on that are essential for economic production and exchange are to be included in the basic structure. What makes possible the incredibly complicated system of legal norms that underlie economic production, exchange, and consumption is a unified political system that specifies these norms and revises them to meet changing conditions.

Nothing comparable to the basic structure of society exists on the global level. Moreover, if Rawls is correct—if a stable “world state” that assumes the primary functions of governments is not feasible—then nothing comparable to the basic structure of society can ever stably endure on a global level (see LP, 36, 48). This means that social cooperation is and must remain distinct from the kinds of relations that hold between different societies individuated by their own separate political systems. This does not mean that different societies do not cooperate; of course they do. But they do not engage in social cooperation in Rawls's sense of cooperation framed within the basic structure of society. Cooperation among peoples (to use Rawls's terms) is a qualitatively different kind of cooperation from social cooperation, and it has its own distinctive fair terms of cooperation. These terms ideally are the Law of Peoples, the terms of cooperation for the Society of Peoples. Some of Rawls's critics confidently claim that “there is a global basic structure,”¹⁷

and argue that for this reason there must be principles of global distributive justice. This simply begs the question, however. Rawls does not need to deny a “global basic structure” in some sense, but clearly he would contend that it is very different from the basic structure of society. For Rawls, the global basic structure would just be the set of institutions that are needed to give effect to the Law of Peoples. Rather than “global basic structure” Rawls refers to “the basic structure of the Society of Peoples” (LP, 61). Whatever we call it, the important point is that these global institutions are very different—qualitatively different—from the basic structure of a society that makes social cooperation possible. It is only because there are societies, with their distinct basic structures of political, social, and economic institutions, that we can take seriously and regard as feasible any kind of “global basic structure.” Global cooperation and global institutions are supervenient upon social cooperation and basic social institutions.

Why is the basic structure of society qualitatively different from the basic structure of the Society of Peoples, and from any other realistic and stable “global basic structure”? The Society of Peoples is not a political society, and thus has no original political jurisdiction or effective basic political power. (Here I use the terms “political society” and “political power” in John Locke's sense to include the idea of political authority, or having the right to rule.) The effective political power and jurisdiction that global institutions exercise are possessed by these institutions only to the degree that they have been granted such power and jurisdiction by independent peoples. Global political authority (such as it is) then exists only as a result of the legal acts of independent peoples—“legal” insofar as these acts are authorized by their own constitutions. So long as independent peoples can withdraw or revise the grant of political power transferred to global institutions (granted there may be significant costs in doing so), global political power remains supervenient upon the political power of independent peoples. This is what it means to say that global political authority and jurisdiction is not “basic” or “original.” Basic political authority resides only within the basic structure of societies. This is not a necessary truth, but it is a significant empirical truth, assuming that a world government would not be capable of any enduring stability (LP, 36). Basic political authority resembles the idea of political sovereignty, but it does not carry the connotations of absolute political power that reside with the idea of sovereignty. Of course, no political power is absolute de jure, not even the power of peoples. The legitimacy of all political power (not to mention its justice) is subject to respect for human rights and the other conditions that Rawls imposes upon a decent (hierarchical) society.

Thus, social cooperation, in Rawls's sense, is not the only kind of cooperation. There is cooperation among peoples, and there are also different kinds of cooperation that exist within families, universities, churches, and other associations and groups. Naturally, all cooperation is social in a sense, but cooperation among members of a society—that is, among people who share the same basic structure—is a distinct kind that Rawls calls “social cooperation.” Then, to avoid confusion, he refers to the cooperation within groups in society as “associational cooperation.” (Here we might provide each of these many different forms of cooperation with a distinct name, to distinguish them all from social cooperation—familial cooperation, religious cooperation, etc.) For each of these different kinds of cooperation, there are rules that specify the fair terms of cooperation among members of that cooperative institution. These are the rules of “local justice” for lesser associations that exist within the basic structure of society. To be just or fair, however, these rules need not all be the same. (For example, children should not have equal say with their parents; and employees need not have equal sway along with managers in order for the work rules internally regulating firms to be fair.)

Rawls says, “Justice as fairness starts with domestic justice—the justice of the basic structure. From there it works outward to the Law of Peoples, and inward to local justice.”¹⁸

What is distinctive about the basic structure of society is not simply that it exercises profound effects on individuals' aims, characters, and future prospects. The same can be said, of course, about the institution of the family, or the religious institutions that provide moral structure for many people's lives. It is the purportedly profound effects that global institutions and economic relations exercise on people's lives that advocates of a global difference principle or other global distribution principle point to when they contend that there is nothing distinctive about the basic structure of a society. Rawls need not deny the significant (though not equally profound) effects of global cooperation to claim that domestic justice, the justice of the basic structure, concerns a different kind of institutional cooperation than does global justice, and that it therefore warrants its own principles of justice. Nor does Rawls even need to deny that there are global principles of justice that regulate global cooperation in order to claim that domestic justice, the justice of the basic structure, has a kind of priority over other forms of justice. But it is part of Rawls's “political constructivism” that terms of social cooperation must be worked out first, independently of the principles of justice of other institutions, whereas the principles of global and local associational justice presuppose the principles of justice for the basic structure. Principles of social (or domestic) justice constrain or limit, but do not entirely determine, principles of local justice. That is, we cannot fully specify the rights and obligations family members have to one another until we first work out the principles of domestic justice. (For parents must respect the rights of their children, spouses have certain duties of support owed not only to their children but to each other, etc.) We can, however, specify the rights, duties, and obligations that citizens of a democratic society owe to one another without first working out the terms of the Law of Peoples. What we cannot do is decide the duties that different peoples owe to one another as peoples, and how they are to act toward one another as peoples in their political relations, before the principles of domestic justice are decided. This is part of what Rawls means by “political constructivism”: the principles that appropriately regulate social and political relations depend upon the kinds of institutions or practices involved, and are “constructed” on the basis of ideas that are central to the functioning of those institutions or practices and people's awareness of them.

Political constructivism is, I believe, integral to Rawls's rejection of cosmopolitanism and a global principle of distributive justice. Cosmopolitanism, as a view about distributive justice, claims that “the content of social justice cannot be arrived at by considering the individual society as a closed system in isolation from all others.”¹⁹

As such, cosmopolitanism is or at least involves an epistemological/methodological claim that denies the possibility of political constructivism. Now what ultimately underlies Rawls's political constructivism are his views regarding moral justification. The justification of principles of justice ultimately involves bringing into a “wide reflective equilibrium” the considered convictions of justice that we share regarding social institutions or practices. Practices and institutions each have their own rules that are constitutive of the practice or institution. So long as we do not question the existence of the institution itself, it is the role of a conception of justice to provide principles for the regulation of these rules constituting practices or institutions. Of course, it may be that as a matter of justice itself (the justice of society, or global justice), certain practices or institutions should not exist or should be radically revised. (Many people have raised questions regarding the institutions of marriage and the family, for example, arguing that for reasons of social justice they should be radically revised, and in the case of civil marriage, even eliminated.) Anarchists, of course, argue that the state, and political society among people, is inherently unjust and should not exist. Some cosmopolitans contend that the state or political society as traditionally conceived (as an independent and autonomous entity, with exclusive control over a territory) should not exist, and that justice requires a world government of some kind.

In response, Rawls's account of the Law of Peoples is based upon certain empirical assumptions and theoretical commitments that, taken together, require the existence of separate societies, each regulated by its own basic structure. Rawls assumes that justice and social cooperation too (at least under modern conditions) are not possible without governments and complicated legal systems, and that what social justice involves, in large part, are principles for structuring and defining the powers of political institutions. He also assumes that a politically autonomous world-state is utopian (i.e., a state that is capable of serving the functions that different peoples with their governments controlling their own territories now perform). For Rawls, this means that attempts to provide principles of justice on the assumption of conditions that could obtain only within (or that optimally obtain only within) a world-state are misguided, since in an important sense these principles are not compatible with human nature, the human good, or the possibilities of stable human society.

What does this mean? On the face of it, the practical impossibility of a world government might not seem to pose any problem in formulating global principles of justice. For example, a utilitarian would say that a just global distribution is one that maximizes the sum of global happiness. The utilitarian then might contend: “The fact that a world government is not feasible is not relevant to the justification of the principle of utility as a standard for global distributive justice (and everything else). It is, rather, a pragmatic consideration relevant to the application of the principle of utility to decide how institutions should be feasibly designed to achieve global justice. But the fact that one or another institution is not feasible has no bearing on standards for distributive justice, and whether they are to apply locally or are global in reach. Philosophical conceptions of justice should not be made hostage to contingencies, but are a priori, the product of (if you will) ‘pure reason.’ ”

The role of empirical considerations and natural regularities in the justification of a conception of justice is a far more complicated question than can be addressed here.²⁰

This much should be said: For Rawls, our considered convictions of justice arise within the practices and institutions we live with, and are attuned to the structure and demands of those institutions. Our considered judgments regarding individual liberties and just distributions originate within the framework provided by the basic structure of society. Moreover, they primarily apply to those institutions (for example, what constitutional rights should people have? how should the system of property and taxation be structured? and so on). Our considered judgments regarding global distributive justice are more tentative and much less secure, since there are few global institutions that give rise to them or anchor them. For many reasonable persons, it is hard to know where to even begin in considering these issues.

Among our more abstract considered convictions of justice that a conception of justice must accommodate is, Rawls assumes, that principles of justice that regulate social and political relations should be publicly knowable and reasonably acceptable to people whose lives and relations these principles regulate. This is part of what it is to be a free person for Rawls—to know, understand, and be able to reason about the bases of social and political relations, and not be under any illusions about them. For Rawls, this suggests that principles of justice should be capable of serving as principles of practical reasoning and justification among people who conceive of themselves as free and responsible agents. It is also a requirement of democracy for Rawls that citizens be in a position to know the bases of their political relations; hence, a publicity condition is incorporated into political liberalism. To serve this public role, however, principles of justice have to be generally acceptable to reasonable people as a public basis for deliberation and justification. This is necessary to citizens' and a democratic people's political autonomy. Moreover, the institutions that these principles presuppose and support, if they are to be publicly acceptable among free persons, must be feasible and capable of enduring over time; and to meet these requirements, they must gain citizens' willing support. As Rawls says, institutions should be “stable for the right reasons,” that is, acceptable to citizens on the basis of their sense of justice.

Now assuming that what we are looking for is a conception of justice that (1) fits with our considered convictions of justice, as reasonable persons, (2) is publicly acceptable to free and equal persons who are also reasonable, and can serve them as a basis for public justification, and (3) is feasible and will endure over time and across generations while serving this public role, then it should follow that (4) this public conception must be one that takes into account and is responsive to the permanent facts about human beings and their living together in social groups, including how they conceive of their good. To put the point another way: Assuming that we are concerned with achieving the freedom and equality of real persons in the world, given their nature and limitations as human beings, a conception of justice must be responsive to facts about human nature if it is to be stable by engaging people's sense of justice.

Consider now the fact that human beings are sociable creatures who develop within and are profoundly affected by the basic institutions of their society. Consider also that a world government and basic structure that includes all the world within one society, and is capable of enduring and remaining stable on reasonable terms over time, is not empirically feasible. For a variety of reasons, the existence of a number of different societies, each with their own political institutions, is a permanent fact about social life. If this is true—if there is no escaping the fact of independent societies each with their own basic structure—and if what we seek is a publicly acceptable conception of justice, then there is no escaping the need for an independent conception of social justice that applies domestically to regulate the basic structure of society. This is required, not simply because of considerations of stability of social groups, but because a conception of justice, for Rawls, has the role of providing a basis for public justification among people who regard themselves as free and as equals. (From the fact that a world-state is not feasible, it should also follow that there is no global conception of distributive justice that is acceptable as a basis for public justification among free and equal persons that is feasible and can remain stable across generations. But this separate issue will be addressed in the next section.)

Assuming all this is true (of course, many will contest it), the following problem arises: Once the conception of justice for the basic structure of society is in place, there is a further need for an account of how different societies are to interrelate with one another. An account of international justice, or “the Law of Peoples,” is in this regard an extension (not a precondition) of an account of social justice, and presupposes it. This claim was already implicit in A Theory of Justice, where Rawls remarked on the need “to extend the theory of justice to the law of nations” in order to guide the foreign policy of a nation regulated by the principles of justice (TJ, 331–33). This claim is only slightly modified in The Law of Peoples, where Rawls says:

This is what Rawls means when he says the Law of Peoples arises “within political liberalism” (LP, 9). Since the Law of Peoples basically concerns the foreign policy of liberal peoples, questions of global justice are already confined to a narrow range of issues, relatively speaking, within the Law of Peoples. Many questions that occupy advocates of cosmopolitan justice do not even arise, having been preempted, in effect, by the problems that the Law of Peoples is designed to address. In the following section, I indicate in more detail how the question of global distributive justice is among these preempted issues.

III. Cosmopolitan Objections to the Law of Peoples

I turn now to more specific objections to Rawls's account in The Law of Peoples, especially those relevant to distributive justice. Rawlsian cosmopolitans (as I call them) criticize Rawls for failing to take into account a number of considerations in designing the Law of Peoples. Three of the main criticisms they make are the following:

1. With regard to Rawls's account of human rights: The parties to the original position among liberal peoples, where parties are representatives of (liberal) peoples, should carefully consider the list of human rights, and when they do, they will agree that the liberal rights that are a part of Rawls's first principle of justice, and are generally endorsed in all liberal societies, should be regarded as human rights enforceable over all the world by the Law of Peoples.²¹

After all, what's good for the (liberal) goose should be good for the (nonliberal) gander. If so, then it is not at all clear that liberal societies will agree to tolerate decent (but nonliberal) societies in the way Rawls suggests.

2. Regarding natural resources: The representatives to the original position for liberal and decent peoples naturally should be concerned about the level of resources that their people respectively control. Not knowing this level, since they are behind the veil of ignorance, they should all insist that resource-poor nations be provided with resources from resource-rich nations. After all, as Rawls says in relation to domestic justice, no one deserves the resources he is born with, so no one deserves to be born rich or poor. By the same token, resource-rich nations do not deserve the natural resources that happen to be deposited by nature on their territory. These resources should be redistributed to resource-poor nations (or at least subject to a resource tax upon extraction) until those nations receive their fair share, and the rational representatives of liberal and decent peoples will insist on as much in the interest of those they represent.²²

3. Regarding distributive justice: Since representatives of peoples behind the veil of ignorance are ignorant not only of natural resources, but also of the level of talent, knowledge, technology, capital, and culture their people enjoy, they should want to protect themselves not just against resource poverty, but also against occupying globally less-advantaged positions. As a result, and for the same reasons as the parties in the domestic original position, they should choose a principle of global distributive justice. Here, some critics argue that for the same reasons that parties agree to it in the domestic original position, the global principle of distributive justice should be the difference principle. (Charles Beitz, Thomas Pogge, Brian Barry, David Richards, K. C. Tan, and others make this argument.) Others contend that Rawls's argument for the difference principle is mistaken and the global distribution principle should be another principle of justice. (Allen Buchanan makes this argument.) A third group contends that the difference principle should domestically apply within nations, subject to the requirements of a different global distribution principle which determines the share that each nation receives and to which they are to apply the domestic difference principle. (Pogge and Tan have suggested this position in conversation.)

One feature that is common to all three of these main criticisms is that they seem to assume that Rawls has made a mistake in applying the terms of his own argument from the original position. I do not think this assumption is warranted. In this section, I address the first two criticisms. In Section IV, I turn to the criticism regarding Rawls's rejection of a global difference principle or other global distribution principle.

IV. Problems with a Global Distribution Principle

The argument is frequently made that Rawls's difference principle, or some other principle, should globally apply to determine the distribution of income and wealth.³⁵

In this section, I discuss some potential problems with the idea of a global difference principle and, more generally, some reasons why Rawls rejects the idea of global distributive justice.

It is sometimes suggested that, in rejecting a global distribution principle, Rawls wrongly assumes that laissez-faire among peoples is the default position for global economic distribution. Thomas Pogge, for example, says that Rawls in effect gives a Nozickian reply to arguments for a global difference principle. For Rawls, “It is somehow natural or neutral to arrange the world economy so that each society has absolute control over, and unlimited ownership of, all natural resources within its territory.”³⁶

However, Pogge claims, Rawls gives no reason for this assumption, nor does he show why the opposite assumption should not be made, namely, that the difference principle or some other distributive principle should be the default position and should apply globally.

I would argue, however, that Rawls does not assume that the difference principle globally applies for the simple reason that he believes that claims of distributive justice are already settled at the domestic level. For reasons I will discuss momentarily, it would make no sense to argue that the difference principle should apply a second time, before or after it is domestically applied. Moreover, the disanalogies with Nozick's libertarianism are too numerous for Pogge's comparison to be of critical value. Rawls does not assume absolute property rights or laissez-faire economic relations among peoples. For Rawls, the duty of assistance to burdened societies is a condition upon a society's use of its resources; by contrast, in Nozick's libertarianism there is no political duty to assist anyone in need. Moreover, on Rawls's view, the Society of Peoples has requisite authority to restrict or regulate nations' and corporations' detrimental uses of resources in ways that would not be recognized by libertarians. Finally, the analogy between a people's independent control of a territory and an individual's rights over property (however extensive) is unfitting. By exercising political jurisdiction over a territory, a people establishes a system of property, which is a complicated system of rules and interdependent expectations. By contrast, individuals do not establish systems of property; rather, they hold and use possessions within property systems, subject to the systems' legal rules and expectations. A people's control over a territory is not a kind of property; it is the condition for the existence of the social institution of property. More generally, it is a condition for social and political cooperation and the very existence of a political people.

Why does Rawls reject the global application of the difference principle? There are several reasons:

1. Rawls regards the difference principle as a principle of reciprocity, designed to apply under conditions of social cooperation to the basic structure of society, where the members of society are regarded as engaging in a complex web of political and social institutions that make up the basic structure. People engaged in social cooperation in a common basic structure of institutions are confronted with a crucial question: How are the terms of cooperation to be structured among themselves as they each pursue their individual purposes and conceptions of the good? The difference principle is designed to express the idea of reciprocity from a benchmark of equality that (for Rawls) defines the terms of social cooperation among free and equal democratic citizens. Assuming that the members of a democratic society are engaged in a common social and political endeavor, advances in the position of those better off should not at any point come at the expense of the worse off; rather, the worse off should consistently benefit from changes in the terms of cooperation that benefit the more advantaged members of society.³⁷

To say that the difference principle should apply globally, and regardless of the kind of cooperation that exists among people, implies that there is nothing special about social and political cooperation within the basic institutions of society; moreover, it implies that democratic social and political cooperation is of no consequence to questions of distributive justice. This is explicit in the objection of those luck egalitarians who argue that the difference principle should apply globally since people cannot control which society they are born into or whom they are destined to cooperate with. The luck egalitarian will say: “If cooperation and whom you cooperate with are just as arbitrary as are the talents and social position you are born with, then the fact of cooperation should not act as a limit upon the application of the difference principle.”³⁸

But if society is to be possible at all among individuals, there must be special terms of cooperation that apply to members of the group that do not apply to those who are not members. Among these, Rawls contends, are principles of distributive justice based on the idea of reciprocity.

2. Luck egalitarianism is one basis for a global distribution principle. Another potential basis is more Rawlsian: it is the claim that global cooperation and a global basic structure exist, particularly in economic relations, and that by Rawls's own criteria a global distribution principle is appropriate in order to reward all those poorer peoples who do their part in global economic production. Allen Buchanan, among others, argues that “it is unjustifiable to ignore the global basic structure in a theory of international law,” and that if Rawls had recognized the influence of the global basic structure on individuals' and peoples' prospects, he would have accepted a global distribution principle. Constituting the global basic structure for Buchanan are the following institutions:

If this is what Buchanan means by “global basic structure,” it is incorrect to suggest that Rawls ignores it. For Rawls, institutions like these are an integral part of the Society of Peoples, but he refuses to regard them as a global basic structure of the kind that warrants principles of distributive justice. Buchanan and others put greater emphasis on these international institutions since they believe they affect people's future prospects just as a domestic basic structure does.⁴⁰

But there is really no comparison between the basic structure of society and the effect of global institutions. The difference is not simply a matter of the (far) greater degree to which domestic institutions affect people's lives. Nor is it simply that international institutions are supervenient upon national ones: they presuppose the complicated basic institutions (the many systems of property and contract, for example) of the basic structures of the many societies whose practices they regulate. Rather, it is also that these international institutions are the product of independent peoples' exercise of their original political jurisdiction as members of the Society of Peoples, which they agree to in order to maintain their own basic structure of society, over which they exercise political autonomy. Simply put, there is no global basic structure mainly because there is no world-state, with all it would entail. (For example, as I discuss below, since there is no world-state, there is no independent global property system to apply a principle of distributive justice to, such as the difference principle; international property conventions presuppose and are confined by the terms of the rules of property systems of politically independent peoples.) There is, then, a fundamental difference between Rawls's and his cosmopolitan critics' assumptions regarding the conditions of social cooperation and distributive justice.

3. Rawls regards the difference principle as a political principle in the sense that it is to guide legislators in defining and regulating the uses of property, setting commercial policies, specifying schemes of taxation, regulating securities and negotiable instruments, defining conditions for copyrights, patents, royalties, and other forms of intellectual property, and establishing the other indefinitely many laws and regulations that structure an economy. (Compare Rawls's remarks regarding application of the difference principle at the legislative rather than the constitutional stage [PL, 229–30].) Strictly applied, the difference principle would require legislators and other officials to consider the effect of laws and regulations upon the prospects of the worst-off members of society. While they may not need to scrutinize each decision to determine if it maximizes the prospects of the worst off, governing officials should at least determine that the least advantaged are not disadvantaged indirectly by decisions made, and that any benefits created by political and economic policies also redound to an appropriate degree to the benefit of the worst off.

There are an enormous number of laws, regulations, legal precedents, and conventions that structure property and economic systems (literally millions in the U.S. federal system). In the absence of political authority and political cooperation, it is hard to see how the difference principle could be applied to influence, much less determine, these innumerable laws, rules, and social practices. The primary practical problem with the cosmopolitan suggestion that the difference principle should be globally applied is that, in the absence of a world-state, there is no political agent with authority to apply it on a global level. Here it might be suggested that each government representing the world's many peoples should apply the difference principle, if not jointly then at least severally. This would require that each nation calculate the effects of its many decisions upon the worst-off members of the world. This is not feasible, nor would it have the desired (or even desirable) effects. The coordination problems of many nations separately trying to tailor their many decisions to affect peoples in distant lands over whom they have no political authority seem insurmountable in the absence of a world-state.

This does not mean that, in making their laws regulating economic institutions, societies should not take into account the adverse effects of their economic policies and property norms upon other peoples, particularly less-advantaged peoples. But this would not be equivalent to instituting the difference principle on a global scale, since it would not require governments to choose only those policies that maximally benefit the (world's) least advantaged. Moreover, there is no need for a global difference principle, or a global distribution principle of any other sort, to induce governments to take into account and restrict the adverse effects of their policies on the world's least-advantaged nations. The duty of assistance already implies a duty to consider and rectify adverse effects of economic policies upon burdened peoples. Moreover, in reference to the “guidelines for setting up cooperative organizations,” “standards of fairness for trade,” and “provisions for mutual assistance,” Rawls states: “Should these cooperative organizations have unjustified distributive effects, these would have to be corrected in the basic structure of the Society of Peoples” (LP, 115). Presumably he means here the “Confederation of Peoples” and international economic institutions with regulatory oversight duties over economic agents as they engage in trade, international investment, and other economic transactions (see LP, 42–43, sec. 4.5 on cooperative organizations). Nothing Rawls says implies that standards for fairness of trade and “distributive effects” are to be decided (as Pogge and other critics suggest) at the global level by a doctrine of unmitigated laissez-faire or libertarian entitlement principles. On the contrary, the implication is that economic relations among peoples are to be regulated with the aim of rendering them all independent and self-sustaining members of the Society of Peoples, each of whose individual members' basic needs are met so that all persons are able to actively participate in their particular society and take advantage of the rights, liberties, and opportunities it offers them (cf. LP, 38 n. 47).

4. It has been suggested (by Pogge, K. C. Tan, et al.) that since there is global economic cooperation, the difference principle should doubly apply, both at the global and at the national level. The thought here seems to be that just as the members of a family can distribute their resources according to principles of local justice once they obtain their fair share under the difference principle in their (liberal) society, so too a society can apply the difference principle to distribute its fair share of the global product once the global difference principle has been satisfied. But the difference principle is not like a principle that applies to a fixed allocation of goods—it's not as if the total global product is like a big cake that we can keep slicing into shares at the global, domestic, and then familial levels. The difference principle can apply only once to structure economic and property institutions, either globally or domestically. It cannot apply to both. (Among other reasons, we can seek to maximize the position of the globally least advantaged, or the domestically least advantaged, but not both, for we can maximize only one thing.) In this way, the analogy between the dual application of the difference principle at the global and domestic levels differs from the dual application of the difference principle first domestically and then within the family. The economy and the family are two different kinds of social institutions, whereas domestic and global economic relations are not. It is not clear what sense could be given to the idea of first structuring economic institutions so that they maximize the position of the worst off in the world, then structuring domestic economic and legal institutions so that they maximize the prospects of the domestically worst off within each society.

5. Not only is there the problem (mentioned in item 3 above) of who is to apply a global difference principle to achieve its intended effects, but there is also a problem regarding just what a global difference principle is supposed to apply to. In the absence of a world-state, there is no global legal system regulating relations among individuals. To take one important example, one role of the difference principle is to specify rights and permissible uses of property interests, and to regulate transactions involving property. However, there is no global property system to apply a global difference principle to. There are economic relations among peoples and members of different peoples. But even here, in the case of international trade, it is (in the absence of treaties setting out specific rules) the property and contract laws of one or another country that apply to regulate economic transactions and to decide disputes about rights when they break down. There is very little international property law that applies to international trade, and the international law that does exist is largely the result of treaties among peoples, and is dependent in many ways upon existing laws in various countries.

6. Let us suppose, however, that we can make sense of the idea of a global difference principle, independent of a basic structure of society and a world-state (and leaving aside questions of how it is to be implemented among nations, and whether it can practicably serve as a public conception of justice that guides the actions of independent peoples or individuals). Rawls's explicit reason for rejecting a global difference principle, or any other global principle of distributive justice, is that since a global distribution principle would continuously apply to all wealth without a cut-off point, it would be unfair to politically independent peoples. He gives two examples, both of which assume the ideal case of well-ordered societies that are members of the Society of well-ordered Peoples. The first example involves two societies beginning with the same level of wealth, one of which saves and invests its resources in industrialization and over time becomes wealthier, the other of which prefers to remain “a more pastoral and leisurely society” of modest means. It would be “unacceptable,” Rawls says, to tax the incremental wealth of the richer society and redistribute it to the poorer nation. The second example runs parallel to the first, but assumes a rather high rate of population growth. One society undertakes population control measures to restrain the high rate of growth and achieves zero-growth, while the other society, for religious and cultural reasons “freely held by its women” does not. (Rawls's example here presupposes “the elements of equal justice for women as required by a well-ordered society” [LP, 118].) Over time, the per-capita income of the society practicing population control is higher. Again, it “seems unacceptable” to tax the wealth of the richer nation and redistribute it to the poorer nation that has freely chosen to maintain its population at higher levels for religious reasons (LP, 117–18).

Importantly, Rawls's rejection of a global distribution principle rests upon the assumption that it is possible for a well-ordered people to exercise political autonomy, that its members are economically self-sufficient (relatively speaking) and not subject to manipulation by external forces beyond their control, and that they can control their level of wealth through savings, investment, population control, and other measures. (See The Law of Peoples, 117 and 118, where Rawls indicates that well-ordered liberal and decent peoples are “free and responsible and able to make their own decisions,” and “able to determine the path of their own future for themselves.”) Rawls's critics seem to question this crucial assumption of the independence of peoples under ideal conditions of a well-ordered Society of Peoples. It has been said, for example, that the inequalities of resources that Rawls's account allows for will inevitably lead to political corruption and the exploitation of less-developed peoples by richer peoples. “In a world with large international inequalities, the domestic institutions of the poorer societies are vulnerable to being corrupted by powerful political and economic interests abroad.”⁴¹

Again, it is important to recall that the Law of Peoples is drawn up for the ideal case of well-ordered societies joined into a well-ordered Society of Peoples. The Law of Peoples includes a duty of peoples to provide for material and other conditions that enable all peoples to be politically autonomous and independent. These and other requirements should protect less-advantaged peoples from “being corrupted by powerful political and economic interests abroad.” If critics claim that such corruption is nonetheless inevitable so long as inequality exists, then clearly Rawls is more sanguine here than his critics are regarding human nature and the possibilities for a “realistic utopia” of politically autonomous and independent well-ordered peoples. Let us put this dispute aside, since it involves largely empirical conjectures about the capacity for political autonomy and the workings of an economy, both domestically and worldwide, under conditions of a well-ordered Society of Peoples. What I want to focus on instead is Rawls's claim that the argument for a global distribution principle made by cosmopolitans is grounded in concern for “the well-being of individuals and not the justice of societies.” What are the origins of this claim? I believe we can understand its origins by examining the two examples I discussed earlier, involving rich and poor societies. A global distribution principle would require that wealth be transferred from richer peoples to poorer peoples in these two examples, even though the relative levels of wealth were (we are assuming) the result of each well-ordered people's free decisions. The insistence that such redistribution should nonetheless be effected can only be based in an ultimate concern for the well-being of individuals, independent of the choices made by their own political culture (and even by themselves, assuming they agree with the decisions of their political culture). This goes beyond my earlier suggestion, that cosmopolitan accounts of distributive justice are ultimately guided by a kind of luck egalitarianism, or the idea that distributions of income and wealth should not in any way reflect outcomes due to chance. It says that transfers of wealth should occur from richer to poorer without regard to either chance or choice, and should be decided purely on the basis of comparative welfare.

Rawls's rejection of welfarism is integral to his rejection of a global distribution principle. In the domestic case, the end of social justice is not individual welfare, but the freedom and equality of citizens. Similarly, in the international case, the end of the Law of Peoples is not the total welfare of a people. (It is not even the welfare of its least-advantaged individuals, though all individuals' basic needs are to be met so that they can participate in the social and political life of their culture.) The end of the Law of Peoples is equal political autonomy, or “the freedom and equality of a people as members of the Society of well-ordered Peoples” (cf. LP, 118). Essential to this is that a society should be in a position to meet the basic needs of all its members so that they can participate in the social and political life of their culture. Recall that this is the basis for the duty of assistance, as opposed to a principle of distributive justice. Here again, however, cosmopolitans may object that, if not welfare, then at least the freedom and equality of individuals, and not of peoples, should be the aim of an account of international justice. But Rawls focuses on peoples rather than individuals in the global case, we have seen, because of the priority he assigns to the basic structure of society and the central role that political cooperation, political culture, and political autonomy play in his account of social justice.⁴²

This focus is precisely the result of his concern for the freedom and equality of individuals, which is in the background throughout in The Law of Peoples. (Recall that the book's purpose is to “work out the ideals and principles of foreign policy of a just liberal people” [LP, 10, emphasis in original].) A condition of the freedom and equality of individuals, as Rawls conceives these basic democratic values, is politically autonomous citizenship within the basic structure of a democratic society that itself exercises political autonomy (that is, its citizens are “able to make their own decisions” and “able to determine the path of their own future for themselves” [LP, 118]). In the end, Rawls's rejection of a global distribution principle does not rest simply upon the assumption that a people can exercise political autonomy, that its members can be economically self-sufficient (relatively speaking) and not subject to manipulation by external forces beyond their control, and that they can control their level of wealth through savings, investment, population control, and other measures. It also rests upon his ideal conception of the freedom and equality of democratic citizens, and the social and political conditions that must hold if that ideal of the person is to be realized.

7. Finally, there is an issue that requires more discussion than I can give it here:⁴³

Rawls envisions the difference principle as a principle that structures property institutions so as to encourage (when conjoined with fair equality of opportunity) widespread ownership and control of the means of production, either in a “property-owning democracy” or in a liberal socialist economy. Like John Stuart Mill, Rawls believed that for workers to have realistically available to them only the option of a wage relationship with capitalist employers undermines individuals' freedom and independence, blunts their characters and imaginations, diminishes mutual respect among members of different income classes, and leads to the eventual loss of self-respect among working people. For this and other reasons, Rawls was attracted by such ideas as a “share economy” (where workers have part ownership of private capital), workers' cooperatives, public provision of capital to encourage workers to become independent economic agents or to start up small businesses, and other measures for the widespread distribution of control over the means of production.⁴⁴

Because there is no global basic structure, advocates of a global difference principle are required to envision the difference principle as a reallocation principle, where the income and wealth of more-advantaged societies are reallocated to less-advantaged peoples. But since this principle does not apply to any substantial basic structure to shape property and other economic relations, and is not conjoined with a principle of fair equality of opportunity, the allocative model of the global difference principle can do little to further Rawls's primary aims. Rawls writes:

This is not to say that the difference principle, when applied domestically, does not also have an allocative role (primarily in the form of income supplements for workers who earn too little to achieve economic independence [TJ, 252]). As Rawls makes clear, however, the difference principle specifically, and distributive justice more generally, should not be confused with measures for alleviating poverty or misfortune; nor is its purpose to assist those with special needs or handicaps, or to compensate the unfortunate for bad luck, natural inequalities, and other accidents of fortune. Any number of principles, domestic and global, can provide a decent social or global minimum and serve the role of poverty alleviation and meeting special needs. There is no need to appeal to a dysfunctional “global difference principle” for these purposes. Rawls's duty of assistance to meet basic needs is already sufficient to serve the role of addressing global poverty and special needs.

The general point, then, is that Rawls does not regard distributive justice in terms of the alleviation of poverty or misfortunes; rather, he transforms the issue from a narrow question of the allocation of a fixed product of wealth in order to address a larger set of issues. Distributive justice is made part of the larger question about how to fairly structure economic and property relations among productive, socially cooperative agents, who regard themselves as free and equal, and each of whom does his or her fair share in creating the social product. In effect, Rawls incorporates the question of distributive justice into the tradition of Mill and Marx, where the primary focus is on how to fairly structure production relations in a way that affirms the dignity, freedom, and equality of socially productive agents. The robust conception of reciprocity implicit in the difference principle is a response to this general issue. It is not the proper response to the problem of global poverty, or to the other alleviatory issues I have mentioned (meeting handicaps and special needs, redressing misfortune, etc.). These are specific problems to address in nonideal theory, by reference to moral duties of assistance, mutual aid, and so on, and are to be determined by citizens' democratic deliberations, on the basis of their knowledge of available resources once the demands of distributive justice are in place and satisfied. These alleviatory problems of nonideal theory raise issues that are separate from the question in ideal theory of determining appropriate standards for just distributions among socially productive democratic citizens who are cooperative members of a well-ordered society.