1.1 Rationality and rule-following

According to many philosophers, the moral quality of conduct is to be located, if not exclusively then at least dominantly, in the rational deliberation of autonomous agents, in accordance with the right reasons, and in such a way that those reasons function as causes for action. Conceptualising the idea of the good as a function of the will, says Iris Murdoch, is very attractive for moral philosophy, for moral judgements can now be seen not as ‘weird statements, but something much more comprehensible, such as persuasions or commands or rules.’Footnote ³ Under this view, as Murdoch continues, thought is not conceptualised as action, but as ‘an introduction to action.’Footnote ⁴ What is emphasised is the need for ‘clarity of intention.’Footnote ⁵ In his recent defence of the moral imagination, Steven Fesmire puts it this way: ‘Moral character is taken to have a basis in will. Will is widely conceived as a function of mind, an inner space that does not depend for its structure on physical or social systems.’Footnote ⁶ Taken this way, ‘moral character essentially belongs to a rational ego, mind, or soul stuffed in the sack of an animalic body.’Footnote ⁷ Locating the moral quality of conduct in this way enables (in fact, in their eyes, provides a justification for) moral philosophers to focus on providing a principle or system of rules that, it is assumed, ought to regulate conduct by functioning as the right reasons for action – as the reasons that, it is argued, ought to dominate our deliberation about we ought to do. As we shall see, the worry we express in this paper with respect to this focus is a neglect of the very real possibility – even likelihood – of those rules becoming too effective in guiding behaviour, simultaneously guiding it to a necessarily narrowed domain of value, and thereby risking the development of persons less responsive to what we call the infinity of suffering and vulnerability.

There are a number of ways of bringing out the values of this approach. A prominent contemporary example is provided by the work of John Rawls.Footnote ⁸ Behind the veil of ignorance, when the material particularities of our own situation are unknown to us, we access that allegedly ideal starting point in which we can engage in unbiased moral reasoning, ensuring impartiality. Only by isolating ourselves from our specific habits, feelings, bodily inclinations, where ‘reason is in a word pure, structured and operating independently of the practical pressures of living’,Footnote ⁹ can we avoid the dangers of bias and prejudice, and even more so, the temptation to act in accordance with our personal interests, pursuing our own private well-being. Of course, this picture is familiar to us ever since Immanuel Kant. In her recent response to Richard Rorty, Martha Nussbaum offers a helpful summary of her reading of Kant’s moral philosophy.Footnote ¹⁰ Kant, she says, ‘heavily influenced by Rousseau, holds that people have tendencies that conduce to good conduct, but also tendencies that conduce to bad conduct.’Footnote ¹¹ Those tendencies are deeply rooted, according to Kant, in our natures: not merely bodily natures, but rather, ‘a propensity to competitive self-love, which manifests itself whenever human beings are in a group.’Footnote ¹² Here is Kant from Religion within the Boundaries of Mere Reason:

Further, even where there exists ‘a good argument against some form of self-indulgence or self-aggrandisement’, we can always ‘expect people to try to wriggle out of it, making an exception in their own case.’Footnote ¹⁴ As Nussbaum notes, Kant’s view of how morally unreliable we are, pushes him almost inexorably toward providing ‘a theory that will give people a way of testing the principles on which they are about to act.’Footnote ¹⁵ We need a systematic, coherent, consistent theory of the ultimate principles and rules of moral conduct, so that we may have ‘some mental rails to hold on to, as the gusts of competitive and selfish passion assail us.’Footnote ¹⁶ From such a theory, Kant says, ordinary judgement derives ‘information and clear instruction regarding the source of its own principle. . .so that reason may escape from the perplexity of opposite claims and may avoid the risk of losing all genuine moral principles through the ambiguity into which it easily falls.’Footnote ¹⁷ To make these comments, of course, is not to engage with the careful and patient exegesis that Kant’s extraordinary and subtle contribution to the question of moral behaviour contains – Barbara Herman, particularly in her latest book, Moral Literacy,Footnote ¹⁸ performs some of that patient and careful analysis, showing how Kantian ethics is not only compatible, but very much needed by those it is criticised by (most recently, the particularist tradition, contemporary revivals of Aristotelian ethics, and work on moral psychology such as that of Owen Flanagan’s).Footnote ¹⁹

In the context of this paper, it is noteworthy that Herman opens her book by noting that it has now been accepted – in light of some of the above-mentioned criticisms of the Kantian legacy – that ‘moral judgement is not a practice of applying fixed rules to particulars in the manner of the legal system.’Footnote ²⁰ That the picture of legal reasoning in the form of such a syllogism, and thus exercised by reference to general, clear and pre-articulated rules, has been defended on moral grounds is evident to any contemporary reader of legal theory. Neil MacCormick, for example, has argued for the ethics of legalism – where legalism is to be understood ‘as the stance in legal politics according to which matters of legal regulation and controversy ought so far as possible to be conducted in accordance with predetermined rules of considerable generality and clarity, in which legal relations comprise primarily rights, duties, powers and immunities reasonably clearly definable by reference to such rules, and in which acts of government however desirable teleologically must be subordinated to respect for rules and rights.’Footnote ²¹ Only legal governance conceived and practised in this way, argues MacCormick, can protect us against ‘Leviathan becoming Frankenstein’s monster, since those who exercise political power themselves have to exercise it under laws which are sufficiently clear and determinate to impose real restraints on arbitrariness or despotic conduct.’Footnote ²²

Of course, this view is well-known, and MacCormick himself cites a range of illustrious predecessors or contemporaries, such as David Hume, Robert Alexy, Jürgen Habermas, Joseph Raz, Lon Fuller, and Tom Campbell – the latter having, since that article, developed his position in a book defending ‘ethical positivism.’Footnote ²³ In all these theorists, MacCormick finds support for the idea that acts of government must be subordinated to respect for rules and rights; that officials ‘ought not to have discretionary power to punish on moral grounds those who do morally evil things, nor to excise on grounds of moral hygiene those whose character or conduct reveals them to be a severe danger to the community, nor even if it could be thought that their own conduct entailed forfeiture of rights in abstract moral terms.’Footnote ²⁴ It is the point, or at least a central point, of law, says MacCormick, to ‘generate adequate determinacy in practical discourse in community or polity’;Footnote ²⁵ ‘people are not to be put on trial for their moral shortcomings and sins; their civil and private rights are not to be made hostages to moral approbation of the way they are exercised.’Footnote ²⁶

These views, it must be said, continue to dominate contemporary legal theory and legal scholarship. Seemingly endless arguments are still being conducted between those who argue that human rights texts provide judges with too much opportunity to delve into what MacCormick calls ‘raw moral argument’, thereby granting them a power disproportionate to their lack of political accountability,Footnote ²⁷ and those who defend the justiciability of human rights texts on the basis, say, of a more dynamic view of those texts being helpful for enabling the long-term inter-institutional dialogue said to be needed in the legal system.Footnote ²⁸ In terms of the above views on legal scholarship, they are also brought out well in MacCormick’s paper: ‘there ought to be’, MacCormick says, ‘a descriptive science of law which describes and rationally reconstructs the legal order as (in the sense indicated) an order distinct from that of ideal morality or politic ideals.’Footnote ²⁹ That view of legal scholarship as primarily involved in rational reconstruction is a familiar one: consider, for example, in the realm of international legal scholarship, the recent anxiety of the International Law Commission over the fragmentation of international law – a fragmentation diagnosed from the perspective of the lack of a coherent body of international law doctrine.Footnote ³⁰ Indeed, so familiar is this spell of doctrinal rational reconstruction on legal scholarship that it motivated Jean-Michel Berthelot to exclude legal science from his overview of the epistemology of the social sciences, on the basis that legal science deals with closed systems of norms, and thus, unlike the social sciences, not with the interactions of human beings.Footnote ³¹

There may be good reasons, at the systematic level, why we choose to support the ethics of legalism, but we cannot afford to ignore the effects of such a system value on the moral quality of the conduct of individual persons (working in legal institutions, or indeed legal scholars with overly-doctrinal research outlooks). Some of these effects have been brought out well by Judith Shklar.Footnote ³² An instructive, even if anecdotal, illustration has been offered by Zenon Bańkowski.Footnote ³³ The illustration involves comparing the function of traffic rules – a common enough example in legal theory, first popularised by HLA Hart’s The Concept of Law Footnote ³⁴ – in Italy and Germany. In Germany, if the light for pedestrians is red, and, therefore, the light for cars is green, it will be assumed by German drivers that since pedestrians ought not be there, they are not there. By contrast, in Italy, the attitude to rules is somewhat more relaxed: as long as pedestrians are not on the road, Italian car drivers will tend to drive on, sometimes irrespective of what the traffic lights dictate. Of course, the illustration is somewhat flippant, but it does point to some of the values and limitations of cultures of rule-following. Traffic rules are necessary for co-ordination, and without some minimal obedience to them, chaos on the streets is difficult to avoid. However, where obedience to rules is too effective, as in Germany, the very point of the rules – the avoidance of risk to both drivers and pedestrians – might be jeopardised. Excessive rule-following places at risk our capacity for awareness to the particularity of the situation before us. It is perhaps no accident that in some smaller German towns, the authorities have recently decided to take out traffic lights and other signals, in favour of rule-free traffic zones. The results, at least so far, have been positive: drivers in these towns tend to exercise more care, more moral alertness, by paying attention to the specific conditions of the traffic situation they are approaching.

The awareness of the limitations of any one set of rules as beacons of moral orientation have received a wider reception in moral and legal philosophy than is perhaps sometimes assumed. In his perennially important, On Liberty, John Stuart Mill warned against the danger of a lack of critical scrutiny of normative languages.Footnote ³⁵ Where normative languages become too effective, and no longer subject to moral scrutiny, we risk relying exclusively on them to orient our moral radars. We do so, Mill insists, at our peril. Mill’s evocative example is that of the persecution of Christian believers by Marcus Aurelius – whom Mill describes as one of ‘the best and most enlightened among his contemporaries.’Footnote ³⁶ How did this ‘gentlest and most amiable of philosophers and rulers’, Mill asks, come to authorise ‘the persecution of Christianity’?Footnote ³⁷ An inability to see the limitations of the normative structure under which he ruled – in other words, dogmatic adherence to the rules of the State – and the correlative forgetting of the ultimate and solemn duty of the State to protect its people, resulted in what Mill sees ‘as one of the most tragical facts in all of history.’Footnote ³⁸

A similar illustration of the excesses of rule-following is provided for in Martha Nussbaum’s reading of the actions of Creon and Antigone in Sophocles’ play.Footnote ³⁹ Neither Creon nor Antigone are capable of seeing the limitations of the rules they feel bound to follow: Creon pledges allegiance to the rules of the State, which oblige him to deny funeral rites to Polynices (one of the sons of Oedipus, who kills his brother, Eteocles, after reneging on his agreement with Eteocles to rule Thebes in alternate years); Antigone, on the other hand, the sister of both Eteocles and Polynices, vows to disregard Creon’s decree, doing so on the basis of family obligations (in accordance with the laws of the gods), which dictate that funeral rites must be exercised for her brother. Both Creon and Antigone, then, are victims of excessive rule-following; of an inability to step outside their rule-defined roles, as Head of State and family member, respectively. Both, as Bańkowski argues, ‘shut out conflict’, adopting ‘an unusually narrow view of the world’,Footnote ⁴⁰ both ‘simplify their deliberate lives in the cause of safety’,Footnote ⁴¹ arguably fearing – or more correctly, not even coming to the realisation that they are scared of – the particularity of the situation before them, which demands the exercise of an inevitably anxious, difficult, and, according to Bańkowski, more human decision.

Furthermore, as argued recently by Brian Tamanaha, normative languages – principally, bodies of rules – when not subject to critical scrutiny in light of particularity, tend to be used as means towards ends.Footnote ⁴² Operating under the influence of rules, losing sight of their limited aims and objectives, we become prone to using them to further our own private ends. Even more perniciously, as is recognised by Martti Koskenniemi, too confident a belief in the alleged inherent goodness of a certain body of rules, may result in our using their alleged universality to inflict our way of life (often of benefit, particularly economic benefit, to us), on the lives of those who have little means to resist our power – a danger well-documented in international affairs by voices from the South.Footnote ⁴³ The cries for the international rule of law, heard most prominently in the West, mask the imposition of much suffering on peoples of the South, producing bodies of doctrine and institutions unresponsive to the specific problems of the communities they affect,Footnote ⁴⁴ and resulting in ever increasing forms of disempowerment of the poor.Footnote ⁴⁵

But the dangers here are often even better camouflaged than we might like to admit – a camouflage brought out most clearly and passionately in Law and Irresponsibility, a recent book by Scott Veitch.Footnote ⁴⁶ Paradoxically, at least at first glance, Veitch argues that laws and ‘legal institutions are centrally involved in organising irresponsibility.’Footnote ⁴⁷ One of the examples running throughout the book is the role of international law and international legal institutions in the UN sanctions regime imposed on Iraq in the 1990’s. The suffering inflicted upon the Iraq population – resulting, at certain moments, in the death of 200 Iraq children a day, and in the chronic malnourishment of many others – could not have been achieved without the legally authorised activities of the various governmental and inter-governmental bodies involved in creating and organising the policies of the sanctions regime. How was it, asks Veitch, that the suffering inflicted did not register, and arguably still has not registered, as suffering? It was not the lack of publicly available knowledge: the deaths were ‘reported (if inadequately) in the press and academia, scrutinised by national and international governmental committees, and yet [the suffering] failed to register in the public, political and moral consciousness in any meaningful way.’Footnote ⁴⁸ Part of the answer, for Veitch, is the blinding feeling of superiority in the West, of the imperial goal, the righteousness of the civilising mission. But another – the focus of Veitch’s effort – is that ‘we do not usually think of actions according to law as excessive, or extreme; rather, it is rule-breaking behaviour that is usually characterised’ as such.Footnote ⁴⁹ We do not recognise the suffering as suffering because acts performed in accordance with the law are normal; the law, informed by and committed to human rights standards, is a force for the good; we already see the suffering, if we see it at all, as suffering inflicted under the ‘dark light of the law.’Footnote ⁵⁰ In a significant passage, Veitch considers the alternative:

The failure, as Veitch notes, is the ongoing one of insensitivity ‘to the voices of those whose position is not our own, but who, in fact, know far more and far better than we do: the victims or their relatives.’Footnote ⁵² If we start and confine ourselves to the rules, the actions performed under the cloak of legality, then already the suffering is veiled, appearing behind that cloak – its immediacy, its horror, already stultified, if not nullified.

Veitch offers many other examples of the way in which the laws and legal institutions allow us to ‘disavow responsibility.’ He is, further, not alone in reminding us of what Robert Cover called ‘the field of pain and death’Footnote ⁵³ in which legal interpretation subsists. Violence as an inherent, if not constitutive part, of laws and legal systems has been recognised by Walter Benjamin,Footnote ⁵⁴ who observed that ‘law cannot serve as a framework for determining whether or not violence is inherently just or unjust, since law itself depends upon violence both in its origin and in its continued existence.’Footnote ⁵⁵ Benjamin argued that ‘what a parliament achieves in vital affairs can be only those legal decrees that in their origin and outcome are attended by violence.’Footnote ⁵⁶ Both Veitch and Benjamin, then, are urging us to recognise that in setting boundaries of the justifiable, the reasonable, the compensatable, the law already excludes, disavows, and makes certain kinds of pain, vulnerability and suffering invisible. Law, as a realm of already articulate and express norms, itself cannot stand as the sole and exclusive standard (as, in these times of intensifying juridification, it appears to have become) against which to measure suffering and pain. To think in such terms is to forget that law itself, already imposes suffering and pain. We must be careful, according to both Veitch and Benjamin, not to let the contemporary dominance of legal norms and legal institutions – and of their accompanying claim to correctness – become obstacles to our capacity to see and respond to pain, suffering and vulnerability.

All this echoes Murdoch’s arguments against the location of the moral quality of conduct within the will. According to Murdoch, when the moral quality of conduct is located in the realm of deliberation – in my recourse to reasons according to which I ought to decide what to do – I am prone to hide my intentions, using them thereafter to justify my actions; distancing myself, thereby, from the consequences of my acts. I become so anxious at trying to control, ex ante, the rightness and wrongness of my actions, that I deprive myself of the ability to find myself responsible for their consequences. In short, I do not identify myself with the actions or deeds that I perform. Again, ‘I can decide what to say but not what the words mean which I have said. I can decide what to do but I am not master of the significance of my act.’Footnote ⁵⁷ The focus on intentional deliberation by reference to reasons forgets, Murdoch argues, the prior work performed by moral vision. Language, argues Murdoch is dependent ‘upon contexts of attention.’Footnote ⁵⁸ Further, and importantly, we acquire contexts of attention over time; ‘we develop language’, she says, ‘in the context of looking.’Footnote ⁵⁹ Martha Nussbaum makes a similar point: exclusive focus on how to deliberate about what to do, about what to decide or choose, is insufficient because ‘the way one imagines or sees a particular choice is of the greatest importance for good conduct.’Footnote ⁶⁰

Both Murdoch’s and Nussbaum’s points raise the question of when and where, and in whose company, we learn to recognise certain objects as objects of value. To say this is to acknowledge that we cannot afford to ignore the social environment, the institutional-embeddedness of conduct. This indeed is the second component of the theory of the moral quality of work deployed in this paper. Before we turn to it, it will be important to stress once more that the recognition of the limits of the location of the moral quality of conduct within rational rule-following ought not blind us as to its values: rules do provide us with important resources, not merely for the co-ordination of behaviour, nor even merely for limiting the undeniable potential for bias and prejudice (itself so susceptible to corruption) of a body of officials unrestricted by the responsibility to justify their decision-making in accordance with pre-articulated rules. Rules can also, as Hilary Putnam argued, enable us to agree that some situation or particular pattern of events demands closer attention precisely because that situation or series of events does not, at least not easily, fall within the web of rules.Footnote ⁶¹ Finally, sometimes rules, and their alleged universality, are all we have when fighting against the excesses of power. As an example, consider the following reply made by Pierre-Marie Dupuy to Koskenniemi’s argument against the hegemony of international law:

1.2 Institutionally-embedded activities

Our entry into the value and limitations of the literature on institutionally-embedded activities can be facilitated by a brief discussion of Hubert Dreyfus’ views on the development of ethical expertise.Footnote ⁶³ Dreyfus argues against the priority of a ‘detached critical morality based on principles that tells us what is right.’Footnote ⁶⁴ Such a view, he says, ‘equates moral experience with judgement, rather than with ethical comportment’Footnote ⁶⁵ – a view that echoes that of Murdoch’s (and of course many others’) insistence that we see moral behaviour as an activity, and not (merely) as a realm of deliberation by way of an introduction to action. This view is symptomatic, he argues, of the intellectual prejudice – its exclusive focus on choice, responsibility and justification of validity claims, dismisses (if it considers at all) the view that ‘our moral consciousness expresses itself chiefly in everyday ethical comportment, which consists in unreflective, egoless responses to the current interpersonal situation.’Footnote ⁶⁶ We do not have space in this paper to consider Dreyfus’ view in any detail: readers familiar with his attack on cognitivism, on what he calls the Myth of the Mental,Footnote ⁶⁷ the correlate defence of the ‘nonconceptual embodied coping skills we share with animals and infants’Footnote ⁶⁸ and his description of the various stages involved in moving from a novice-stage to an expert-stage, will recognise Dreyfus’ more general ideas here – ideas that chime well with an increasing awareness amongst analytical philosophers, or at least those educated within the analytical tradition, of the limits of intellectualism.Footnote ⁶⁹

This time, however, Dreyfus applies his views to the question of moral maturity. He is not alone, of course, in speaking of the relevance of those epistemological pictures that do not subsume know-how under know-that – the most famous of which perhaps are those of John DeweyFootnote ⁷⁰ and Gilbert RyleFootnote ⁷¹ – for our pictures of moral behaviour. But Dreyfus’ views on what he calls ethical expertise do raise serious questions. Consider this passage:

One of the issues raised here is the one mentioned above, i.e., just where, and in whose company, does a person acquire that ‘involved experience’ that Dreyfus argues accompanies the development from beginner to expert? This is the issue to be dealt with presently, i.e., the issue of the design of institutions within which human beings work over long periods of time, every day. But the other issue – of most importance to the third component of our theory (to be dealt with below) – is that of the danger involved in situating ethics within expertise: is there not a risk, after all, involved in a person becoming too effective, too fluid, too stream-lined in his or her movements, activities, practices, to notice what may need to be noticed as different, as requiring more attention, adaptation, change?

Dreyfus’ writings here are not without awareness of the above two issues, but it must be said that both receive little elaboration. Dreyfus is primarily interested in making room for a picture of behaviour as nonperceptual embodied coping that he believes, quite rightly, has been largely ignored by the dominant tradition of rationalism. His view is important for us because it helps us to locate the engine of behaviour in activity that is always and already operating with an environment to which it has adapted. It allows us, in other words, to enlarge our picture of the moral quality of conduct to include not only the analysis of intentional deliberation, but also to that of the shaping of habits, dispositions, and tendencies of members of a certain institution. But his writings by themselves give us little guidance on the social environments in which what he calls ‘ethical expertise’ is developed, or indeed, how someone might come to realise that a particular situation demands a different kind of response from the response that a person may be prone to display on the basis of deliberation by recourse to some set of rules or in accordance with the embodied coping skills so successfully acquired by the person.

Of course, there have been many recent theoretical acknowledgements of the importance of institutional conditions. Within legal theory, for example, we have Nicola Lacey’s argument that legal ideas are dependent on certain institutional conditions for their existence.Footnote ⁷³ Roger Cotterrell, too, explains the difference between normative and empirical legal theory along the lines that the first ‘explains the character of law solely in terms of the conceptual structure of legal doctrine and the relationships between rules, principles, concepts and values held to be presupposed or incorporated explicitly or implicitly within it’,Footnote ⁷⁴ while the second studies the way those ideas are ‘produced in, embodied in and legitimating institutional practices.’Footnote ⁷⁵ Lacey’s criticisms of Hart’s analysis of legal causationFootnote ⁷⁶ and responsibilityFootnote ⁷⁷ on the basis that he (and, in his work on causation, Tony Honoré) ‘reduced linguistic usage to a body of doctrine rather than seeing it as a social practice that takes place within a context, the specific nature of which requires investigation because it inflects the relevant concepts’Footnote ⁷⁸ is well-placed. Lacey is right to lament the lack of an ‘exploration of. . .social practices or forms of life’, but like many others (Cotterrell provides a helpful overview of the various sociological or empirical approaches in legal theory),Footnote ⁷⁹ she justifies that exploration on the basis that it illuminates how the normative languages of law are embedded in those social practices or forms of life.Footnote ⁸⁰

One problem with this view is that remains too intellectualist. The social environment is illuminated only to the extent that it itself illuminates the use of already existing normative languages. A similar intellectualist trend is familiar in much of the contemporary literature on institutional design. What matters, according to many theorists working within the field of institutional design, is how various features of institutions affect the incentives of rational agents who deliberate about what they ought to do.Footnote ⁸¹ It is here, then, where the reference to Dreyfus helps us paint a different picture of the relevance of the design of institutions: it is not (or at least not merely) the effect on the life of ideas or on rational agents that we are investigating; rather, it is also the role those features of institutions have on the formation of certain skills, habits, dispositions, and tendencies on persons working within them. We may not, as we shall see, rid ourselves completely of the intellectualist tendency: it is difficult to loosen the grip of the language of beliefs, etc., and indeed, it would most probably be unwise to do so. But we can still attempt to capture some of the necessarily more diffuse and less formal features of institutional design that tend to have the greatest impact on the development of embodied coping, and thus also, on the tendencies of persons working within institutions to respond to certain situations in specific ways.

One potentially useful resource here is the literature on moral climates in business firms. Deborah Vidaver-Cohen’s paper provides a helpful overview of this literature.Footnote ⁸² Writing in 1992 of the Business Ethics Quarterly, William Frederick identified two strands of inquiry for business ethics: ‘The first should examine the cognitive aspects of individual moral decision-making. The second should explore the behavioural context in which moral conduct unfolds.’Footnote ⁸³ It is the second that has been the focus of the moral climate literature. The focus here, according to Frederick, is ‘not so much in direct observation of the decision maker as in a firmer grasp of the decision maker’s environment.’Footnote ⁸⁴ Research has focused on the effects on moral behaviour of organisational practices and proceduresFootnote ⁸⁵ though, as was evident in Bart Victor and John Cullen’s influential study on ethical work climates in 1988,Footnote ⁸⁶ not always did this literature ‘specify what those practices and procedures might be.’Footnote ⁸⁷ What, then, are some of those practices and procedures?

We can look, for example, says Vidaver-Cohen, at ‘political processes such as strategy formulation and power distribution. . .e.g., we can a) look at how mission statements are worded; b) examine the way management incorporates obligations to multiple constituencies into long-term plans for the firm; and c) assess whether those with greatest power in the firm are concerned with social as well as economic goals.’Footnote ⁸⁸ We can also investigate whether ‘those who might be negatively affected by organisational actions [are] given the power to influence organisational decisions.’Footnote ⁸⁹ We can ask: ‘is accountability emphasised in formal communications and are informal organisational role models those who consistently consider and accept responsibility for the consequences of their actions?’Footnote ⁹⁰ We can observe whether ‘accountability, responsibility and respect appear to be common words in the organisational vocabulary.’Footnote ⁹¹ Are ‘powerholders accountable for wrongdoing; [are] those in less powerful positions. . .rewarded equitably for good performance’?Footnote ⁹² Are tasks ‘structured in a way that requires accountability from employees at all levels’?Footnote ⁹³ What behaviours ‘generate social approval from others and which lead to social rejection’?Footnote ⁹⁴

These are, we wager, useful observations to make or questions to ask. It is noteworthy, however, that the theoretical foundations of the moral climates in business literature remain heavily cognitivist – and, in that respect, also more likely to pick out features of institutions that are more formal (such as the texts of mission statements, or the references made to professional codes, or articulated systems of reward, etc). The technical definition of moral climates in that literature is that of a study of the ‘prevailing employee perceptions of organisational signals about norms for establishing intentions, considering consequences, observing contracts, determining distribution and implementing procedures.’Footnote ⁹⁵ The focus remains, then, at the level of the effect of practices and procedures on allegedly commonly shared beliefs and expectations. It must be said that the moral climates movement in the business ethics literature is not alone: though there are calls made for the need for a study of institutions on the basis of their shaping of the embodied coping skills referred to by Dreyfus,Footnote ⁹⁶ there is a lack of extensive analysis of the specific features of institutions that develop certain kinds of habits, dispositions and skills – a hallmark perhaps of the continued grip of the intellectualist tendency.

One exception here – though itself not shorn completely of cognitivist elements – may be the work of Philip Selznick. In his Leadership in Administration,Footnote ⁹⁷ Selznick makes a distinction between an organisation, which he sees as a ‘formal system of rules and objectives’ in which ‘tasks, powers and procedures are set out according to some officially approved pattern’Footnote ⁹⁸ and an institution, which ‘is more nearly a natural product of social needs and pressures – a responsive, adaptive organism.’Footnote ⁹⁹ Selznick is keen to stress awareness of the ‘‘informal structure,’ which arises as the individual brings into play his own personality, his special problems and interests.’Footnote ¹⁰⁰ There is, of course, a formal structure or ‘formal relations’, but these ‘co-ordinate roles or specialised activities, not persons.’Footnote ¹⁰¹ The distinction between organisations and institutions also performs another task for Selznick. It allows him to talk of what he calls ‘institutionalisation’, which is an ‘infusion of value’ in an organisation that occurs over time – thus, it is a story about the development and change of organisations into institutions. Treating as it does the issue of leadership in administration, Selznick’s work is designed to be somewhat inspirational, so that it attempts to characterise a leader as ‘an agent of institutionalisation, offering a guiding hand to a process that would otherwise occur more haphazardly, more readily subject to the accidents of circumstance and history.’Footnote ¹⁰² Nevertheless, despite the lionised language, it will be worth our while to examine the ‘task of building special values and a distinctive competence’Footnote ¹⁰³ that Selznick prescribes for leaders of institutions.

Two of the most important tasks that leaders are called on to perform, according to Selznick, are: 1) the definition of institutional mission and role; and 2) the institutional embodiment of purpose.Footnote ¹⁰⁴ In relation to the first, Selznick says that in defining the mission and role of an institution a leader:

We don’t propose to elaborate on the first of the above-mentioned tasks, but it will be useful to sketch Selznick’s views on ‘the institutional embodiment of purpose.’ Selznick begins with what he calls the ‘aspects of social structure that affect the maintenance and change of policy decisions.’Footnote ¹⁰⁶ These include: assigned roles, internal interest groups, social stratification, beliefs, participation, and dependency. Taken together, says Selznick, ‘these six elements of social structure. . .form a complex network of relations among persons and groups.’Footnote ¹⁰⁷ Further, ‘this network acts as a filter through which policy is communicated.’Footnote ¹⁰⁸ Let us look very briefly at each.

The first aspect, the assignment of roles, refers to the division of labour, where what Selznick asks us to understand is how ‘an assigned position or role may carry inherent difficulties that endanger the aims of policy.’Footnote ¹⁰⁹ The example he provides is that of a foreman who must both ‘represent management’s interests’ and, at the same time, ‘establish a rapport with the men he supervises.’Footnote ¹¹⁰ The second aspect points to the phenomenon of interest-group formation, which may range from the ‘small informal group of workers’ to a ‘large department able to summon its own loyalties.’Footnote ¹¹¹ Here, Selznick enjoins leaders to realise that ‘particular values or policies find a social base in the group structure of the enterprise,’Footnote ¹¹² which is ‘a source of more than formal support, a centre from which influence may radiate, a training ground for loyal and self-conscious adherents.’Footnote ¹¹³ The third aspect is that of social stratification – a ‘system of ranking’ that ‘has many uses, including fixing authority, dividing the work effectively, and supplementing formal incentives.’Footnote ¹¹⁴ The point here is that ‘the life experience of men at different levels in the organisation differ, and these variations affect 1) how individuals in similar social positions view the world and themselves, and 2) the stake they have in the enterprise.’Footnote ¹¹⁵ The fourth aspect is beliefs, i.e. ‘shared beliefs of the participants.’Footnote ¹¹⁶ In this context, Selznick notes it is important to understand how mutual beliefs can arise and how it may thus be possible ‘to use law to neutralise belief by splitting it from behaviour; and to employ law as a creative agency restructuring environments to foster desired understandings.’Footnote ¹¹⁷ The example offered by Selznick of those recommendations is that of ‘the effort of the military to abandon racial segregation.’Footnote ¹¹⁸ The fifth aspect, participation, refers to ‘the different kinds and degrees of commitment that members have to the enterprise.’Footnote ¹¹⁹ Selznick notes how participation is often affected by the personal commitment to the organisation (higher amongst those with a personal investment in the organisation) and how it itself affects communication: ‘members playing different roles and involved in varying degrees, will differ in their ability to understand the reasons behind many decisions.’Footnote ¹²⁰ It is due to ‘weak or narrowly defined participation’ that members may have ‘little opportunity for greater comprehension’ of the organisation’s objectives and principles.Footnote ¹²¹ The last aspect is that of dependency, which is used by Selznick to point to ‘the value of understanding who needs whom.’Footnote ¹²² These ‘dependency patterns are also indirect products of the division of labour.’Footnote ¹²³

Selznick calls for an understanding of the relationship between these six aspects of social structure and that of policy. This may be approached in a ‘piecemeal’ fashion, where one would set out to ‘discover the specific institutional conditions that support specific policies’, or in a more general way, and also the preferred option according to Selznick, which would lead one to the ‘discovery of general relations between types of policy orientation and kinds of social support.’Footnote ¹²⁴ One of the resources described by Selznick for the more general discovery is that of organisational history:

Selznick’s typology for analysing the institutional embodiment of purpose is useful. The attention he pays to informal features, developing over long periods of time, and thus more likely to be more effective in shaping the dispositions, skills, and habits of the persons within the institutions, is both rare and valuable. But there is, we believe, much more work that needs to be done in this area. Unfortunately, it is not work that can be conducted within the scope of this paper: the point in raising it is that, given the limits we referred to above of the intellectualist trend in moral and legal philosophy (with its focus on rationality and rule-following), we ought not to ignore that which tends to fall outside it. In particular, in the light of the above, we ought not to forget that the moral quality of conduct does not reside merely in deliberation, but also in the forms of activity, the practices of those who, working within a certain institution, develop certain kinds of habits, skills and dispositions. The formal and, particularly, the informal, structures of institutions have an effect – often invisible to us, at least at first blush – on what individuals will find revealing to notice, what emerges for them as an exception that deserves greater awareness, what objects will for them be sources of value, what is seen to be worthy of pursuit, and so on. If Murdoch and others are right that vision is a moral discipline; that normative languages develop in certain contexts of attention; and if Dreyfus is right that we become ‘ethical experts’, responding intuitively to certain situations; then it follows that we must look at the social environment, and, for the purposes of this paper, the specific institutions and their features, that impact on the development of vision as moral discipline, or on the skills, habits and dispositions that make up ‘ethical expertise.’

Of course, as useful as this endeavour is, or at least so we argue, it nevertheless has its limitations. We must not think that there is anything inherently ethical or moral in any particular way of seeing or any kind of activity or skill. There is no such thing as moral vision or ethical expertise per se. Similarly, there are no rules or principles that guarantee ethical conduct – not only because our conduct is not always influenced most by those rules and principles (we often act, instead, out of institutionally-embedded habits, or under pressure exerted from various kinds of social environments), but also because sometimes our conduct is too influenced by those rules and principles. When normative languages become too embedded – no longer subject to critical scrutiny – we tend to forget their limitations, we are prone to using them to further our own private ends or to construct elaborate justifications that enable us to disavow responsibility. Not always are the skills, habits and dispositions we develop bad ones: developing the habit for listening to those whom we affect – a habit that is unlikely to develop without the participation of those whom we affect in policy and decision-making – is, most of the time, a good habit. Indeed, it is a much undervalued habit. But like other habits, when such a habit becomes too engrained, it tends to also become unresponsive to particularity – to the infinite diversity of suffering and vulnerability around us. It is here that we arrive at the third and final component of our theory of the moral quality of work – to which we now turn.

1.3 The infinity of suffering and vulnerability

The more effective evaluation and potential improvement of the moral quality of work require the valuable resources of rules and the more or less formal means of institutionalisation. Locating the moral quality of conduct in the rational deliberation of agents spurs us on to articulate rules that individuals can use as resources for their deliberation. Locating the moral quality of conduct in the activities – the skills, habits and dispositions – of persons enables us to realise the significance of the design of our institutions and other social environments. But, even combined, these resources are not enough. In both cases, these resources can become too effective in influencing or determining conduct. Both contain within them a capacity to make us develop certain ways of seeing, of locating value in certain objects of reality, and of certain ways of acting and responding to situations. As such, both contain the danger of complacency: of coming to believe that the moral quality of our deliberation and action is secure or guaranteed, as long as we deliberate by reference to the right reasons or in accordance with approved practices.

What we need is something that, perhaps paradoxically, slows us down, makes those resources less effective, provides us with the critical space in which we can see their limitations – which, simultaneously, and crucially, are also our own limitations as scholars and policy-makers. We need ways of coming to recognise the contingency of our ways of speaking, seeing and acting. We need alertness, responsiveness to particularity, ability and willingness to suffer the anxiety inherent in the recognition of our own limitations. We need rupture and refreshment, so that we may leave space for the realisation that nothing is inherently ethical. We need defamiliarisation and estrangement so that we may notice how narrow our visions and beliefs can be – how they always pale in comparison to the infinite diversity and depth of suffering and vulnerability. We need, in many ways, to de-educate ourselves.

Of course, it is extremely difficult to propose ways in which we might come face to face with our limitations – it is difficult precisely because the moment in which one discovers such a way, is also the moment in which one must find another one. I cannot be comfortable or feel safe in coming face to face with my limitations: such an experience must hurt; I must undergo it almost unwillingly. I must find myself in a silence I cannot understand, where I cannot foresee what will happen, or what resources to make use of in order to guide myself, to get myself out, to step back up onto familiar ground. I must open myself up; I must make myself vulnerable, capable of being hurt, capable of being wrong, capable of starting again, learning to speak and see and act anew. Perhaps, like Bankowski says, I must give myself over to love.Footnote ¹²⁶ Or, like Simone Weil puts it, I must suspend my thought, I must wait, I must be attentive.Footnote ¹²⁷

These remarks may seem too vague to be useful. It is not difficult, however, to indicate their negative aspect: namely, that we cannot rely solely, for example, on any one regime of normative language, or on any particular set of institutional features. The language of human rights – or, indeed, the language of rights generally – brings with it certain benefits, even under the hegemonic canopy of universalism. But as soon as the language of human rights becomes too pervasive, it is prone to misuse in ways that are very difficult to detect: after all, human rights principles may populate the documents of corporations, but they may be functioning only to cover up clever means of furthering the economic thirst of such a corporation (making it more difficult for us to hold the corporation responsible for the consequences of its policies), or recourse may be had to those rights with the best of intentions, with the purposes of the principles in mind, though then the danger is that we may make the mistake of thinking that actions in accordance with human rights principles are in some sense inherently ethical. The third component of our theory insists that nothing is capable of stripping away the bare and irreducible obligation to confront one’s own limitations, and to recognise the particularity of the suffering and vulnerability around one. It is this more positive aspect of the third component – as opposed to the above mentioned aspect – that is so difficult to articulate, and perhaps unavoidably so. It is this more positive aspect, also, that we shall attempt to address in our call for Community Forums (developed below).

This paper is not the appropriate forum for elaborating on a full vision of this third component. Such an elaboration must await other work – a work that will no doubt benefit from other sources, such as the thinking of Emmanuel Levinas and Søren Kierkegaard. We now turn, instead, to a consideration of the applicability of this general theory of the moral quality of work to that of international economic institutions.

2.1 Rules

The first point that needs to made in light of the evaluation of the moral quality of international economic institutions, from the perspective of the values and limitations of the first component (that of a focus on rationality and rule-following), is the continuing reliance of second-generation reforms on the language of human rights. In many respects, as we have noted above, this is a welcome development – for it has the capacity, being a new normative language for international economic institutions, to orient moral alertness to forms of suffering and vulnerability previously not noticed or not taken as seriously by those institutions. We ought to encourage, and indeed enforce, the role of human rights in international economic institutions. The danger, however, in continually relying on the discourse of human rights is that we may come to think that that language is itself capable of making us see the variety and depth of suffering and vulnerability. To the extent, then, that the evaluation and potential improvement of the moral quality of work conducted in international economic institutions is restricted to the implementation and policing of the discourse of human rights, it must be recognised that this restriction carries with it significant dangers.

One way of bringing out the limitations of human rights discourse is to see how that discourse is being used in international economic institutions. As Rittich notes, there is a gap between the ‘references to human rights within development and market reform policies’ and the manner in which human rights ‘are understood by the international human rights institutions, human rights scholars, the activist community or the wider civil society.’Footnote ¹⁴⁸ The policy documents of international economic institutions tend to limit themselves to civil and political rights, such as freedom of expression, religion and association. As Rittich notes, both the Bank and the Fund continue to resist decisively calls by activists to the advancement and protection of social rights (to be fair, we note that the WDR was drafted in 2004; Rittich’s paper was written in 2000). Where it is recognised by activists and theorists that ‘fiscal austerity drives. . .limit the resources for health, education and other social services; macroeconomic and monetary policies. . .increase unemployment and aggravate the plight of the poor; and liberalisation and regulation policies. . .shift the balance of power among social actors domestic and foreign and increase inequality both within and among states’,Footnote ¹⁴⁹ the Bank and the Fund argue, typically, that ‘they have no mandate to endorse development policies that do not demonstrably lead to and may in their view actually impair economic growth.’Footnote ¹⁵⁰ Further, in ‘arguing that economic growth is itself necessary for human rights’ these institutions subvert ‘the argument that development and market reform projects should automatically be subordinated to human rights norms.’Footnote ¹⁵¹

The point here is that ‘discussion and policy prescription on the rules and institutions that are needed for development remain centred around concerns about the promotion of efficiency and competition through the protection of property and contract rights.’Footnote ¹⁵² The legacy of that ‘well-defined set of market centred and market-promoting parameters’Footnote ¹⁵³ that has been the traditional focus of international economic institutions continues to be the frame within which human rights discourse is referred to – keeping in mind, as we have noted, that that discourse is already one that tends to be limited to certain civil and political rights. As Rittich notes, ‘it is important. . .to understand that the protection of investor interests and the commitment to efficient legal rules and institutions remains a major part, perhaps the major part, of the strategy [of international economic institutions] to advance greater social well-being and social justice.’Footnote ¹⁵⁴

Not only that, but international economic institutions have also sought to raise arguments – within the human rights discourse – as to ‘the right to trade’ – and ‘have elevated transactional freedom, property rights, and the entitlement to participate in markets to the level of basic human rights.’Footnote ¹⁵⁵ An example of this line of work is the Bank’s Doing Business project.Footnote ¹⁵⁶ The aim of the project is to investigate ‘the scope and manner of regulations that enhance business activity and those that constrain it.’Footnote ¹⁵⁷ It notes with some pride that by 2006 the data compiled in ten different areas of business law in 175 countries has ‘informed or inspired’ 48 legal reforms around the world.Footnote ¹⁵⁸ The list of factors according to which the data (as to the ease of doing business) is compiled is illustrative of the continuing dominance of the object of attention of international economic institutions: 1) starting a business; 2) hiring and firing workers; 3) enforcing a contract; 4) getting credit; 5) closing a business; 6) registering property; 7) protecting investors; 8) paying taxes; 9) trading across borders; and 10) dealing with licenses.Footnote ¹⁵⁹ There is here a complete lack of awareness of, let alone subordination of the methodology to, the discourse of human rights.

Things are not much better at the WTO. As Professor Joost Pauwelyn, the newly appointed Professor of International Economic Law at the Graduate Institute in Geneva, said in December 2007, the trade system remains centred on the same basic text, GATT, and continues to follow the same negotiating techniques and mechanics – despite the passing of over 60 years.Footnote ¹⁶⁰ Amongst other things, the GATT’s focus on ‘reciprocal exchange of market access concessions’ signifies, according to Pauwelyn, ‘a deep distrust of domestic politics.’Footnote ¹⁶¹ Left to their own devices, it is assumed that national parliaments will succumb to the temptations of rampant protectionism. Taking seriously the shift, marked by the Technical Barriers to Trade Agreement and the Agreement on the Application of Sanitary and Phytosanitary Measures, from negative harmonisation to positive harmonisation,Footnote ¹⁶² and realising, furthermore, that much of the political pressure on product standards comes from consumers and citizens who criticise, for example, the processes by which certain products are produced (in sweatshops, etc), what we need, according to Pauwelyn, is a radical shift in the trade politics of the 21^st century. The world, he says, is not there for the WTO; rather, the WTO is there for the world.Footnote ¹⁶³ However, it is indicative that the questions that continue to be asked are how product standards can be harmonised to facilitate free trade – to which we must reply, free trade for whom? Who gets to make the standards, and with affect on the kinds of suffering sought to be alleviated by human rights regimes? The general absence of such questions may itself be symbolised in the fact that 40% of world trade continues to be referred to in the official statistics as belonging to the ‘Others’ categoryFootnote ¹⁶⁴ – a powerful enough nomenclature in itself.

Even this all too brief discussion indicates that the policies of international economic institutions, to the extent they incorporate human rights language, tend to subordinate them to the continuing legacy of the autonomisation of the economic sphere and its objects of value. This is not to say, once more, that there are no potential benefits flowing from the limited use of this relatively new normative language for international economic institutions – indeed, as we said above, this is a welcome, and much too long ignored development. The use of human rights discourse can orient international economic institutions to recognising new and vital contexts of moral attention, but the views of Murdoch and others on the manners in which habits of moral vision are learnt over long periods of time is substantiated in the way that that normative language has been used in international economic institutions. Given the importance of long-standing habits of objectifying value, it is now time to consider the work of international economic institutions from the perspective of the second component, i.e., that of the significance of social environments generally, and forms of institutional design more specifically.

2.2 Institutional design

One of the most important features of the second-generation reforms has been the call for greater participation of local communities in the decision- and policy-making of international economic institutions. We noted above that that feature was emphasised by the Bank’s CDF. It is also a feature that has received a considerable amount of attention in contemporary criticism of the WTO.Footnote ¹⁶⁵ One of the legacies of the GATT’s deep distrust of domestic politics is the harm done to democratic participation in trade politics of all nations, but the marginalisation of developing countries, as has been noted by many commentators, is the starkest and most troubling of all. Despite calls for increased participation, accountability, and transparency in international economic institutions, developing states – and not only states, but also poor and isolated communities within those states or indeed across state borders – continue to ‘face formidable barriers to participation in the design of the global institutional order and suffer predictable detriments as a result.’Footnote ¹⁶⁶

As Gerald Helleiner has noted on many occasions, the ‘endless lectures by Northern leaders and heads of international organisations to policy makers in developing countries, who they evidently believe to be incapable of perceiving their own interests, as to the inevitability (and benefits) of globalisation and the virtues of participation in the global economy, are tedious and patronising.’Footnote ¹⁶⁷ As he further argues, it is ‘not at all obvious either 1) that further external liberalisation. . .is now in every country’s interest and in all dimensions or 2) that in the overarching sweep of global economic history what the world now most requires is a set of global rules that promote or ease the path to greater freedom for global market actors, and are universal and uniform in application.’Footnote ¹⁶⁸

But scepticism about the ‘one-size-fits-all’ approach to economic governance will continue to fall on deaf ears – at least within international economic institutions – if those institutions are not designed to facilitate the full participation of local, poor and rural communities in both decision-making and policy-making activities of international economic institutions. The starting point here ought to be awareness as to ‘where the bulk of the power in decision-making relating to the global economy’ rests, and is likely to rest for some time to come.Footnote ¹⁶⁹ Helleiner locates that power in ‘those countries, firms and organisations that are economically (and, it must be added, militarily) the strongest.’Footnote ¹⁷⁰ The influence of large private corporations on ‘all so-called democratic societies’Footnote ¹⁷¹ continues to be, arguably, an underestimated phenomenon. As Helleiner points out, ‘the international activities of business lobbies are subject to no limits or registration requirements or regulation’ and the bulk of their activity continues to be ‘untransparent to the public.’Footnote ¹⁷² As others in the international trade literature point out, most of today’s trade is now intra-industry and intra-firm.Footnote ¹⁷³ To the extent’, Helleiner rightly argues, ‘that future global governance arrangements are undertaken through or in conjunction with the private (or non-governmental) sector they are likely to be even more biased toward Northern interests and perceptions than they already are in intergovernmental institutions and processes.’Footnote ¹⁷⁴

The under-representation in international economic institutions of the peoples of developing nations, who comprise about 85% of the world’s population,Footnote ¹⁷⁵ is nothing less than tragic. The selection process, for example, for the leadership of international economic institutions ‘demonstrate’, according to Helleiner, ‘zero regard for the principles of due process that at least, to some degree, are found within democratic nations or even within many large private corporations’Footnote ¹⁷⁶ – a criticism that offers a timely reminder of the continuing neglect of the importance of informal institutional features on long-term moral vision, skills, habits and dispositions. But even restricting ourselves to the formally defined institutional features – such as voting powers in the Fund and the Bank – the picture is bleak indeed: formal voting power, as is well known, is ‘determined by a formula assigning primary weight to economic strength with the result that their governance is, by far, the least democratic of the major multilateral bodies.’Footnote ¹⁷⁷ Developing countries account for 61-62% voting strength in the Bank and the Fund.Footnote ¹⁷⁸ This depressing statistic should also be put in light of the complete lack of representation of developing countries in ‘the various meetings of industrial countries on economic and financial matters in the G7/G8 Economic Summits; the meetings of the G7 and G10 Finance Ministers; the meetings of the central bank Governors in the Bank of International Settlements; and the various committees of the Organisation for Economic Co-Operation and Development.’Footnote ¹⁷⁹

There are some positive developments: the efforts being made by the United Nations Conference on Trade and Development, the United Nations Development Programme, and the Department of Economic and Social Affairs, and the regional commissions, are a help – though even here one must query just how much the voices of those affected, the poorest and most remote of peoples in developing nations, are being heard. Similarly, the participation of ‘several emerging market economies. . .in the Financial Stability Forum. . .and the new Group of Twenty’ are also welcome, though ‘both of these are primarily directed at the narrow question of the prevention and resolution of systemic financial crises’, contain ‘no representation. . .from the poorest and smallest developing countries’, and do not ‘possess any mechanisms either for reporting or for accountability to the broader international community.’Footnote ¹⁸⁰

In considering changes we must go behind the veil of formality. In the WTO, for example, where the right to participate is documented, one must consider just how realistic the participation of the ‘resource-constrained smaller and poor countries’ can be in light of the ‘ever-increasing complexity of issues and the rising number of meetings and obligations now characterising WTO processes.’Footnote ¹⁸¹ The real effect of such ‘participation’, as Helleiner notes, is that most of these developing countries are ‘rule-takers as opposed to rule-makers.’Footnote ¹⁸² Of course, this is not even to mention the absence of developing countries in the often more serious ‘consensus-building consultations that go on inside and outside the formal Geneva meetings.’Footnote ¹⁸³ As Helleiner notes, failing the development of a more efficient and realistic system of representative decision-making, ‘whatever the WTO’s formal structure, its decision-making risks reversion to previous [GATT] ‘Green Room’ practices in which the main players exercise disproportionate and inappropriate influence behind closed doors.’Footnote ¹⁸⁴

With respect to the specific problems besetting the WTO, Helleiner agrees with Pauwelyn that a radical change in trade politics is needed, accompanied by an equally radical change in institutional design. The problem, says Helleiner, is that the ‘WTO’s raison d’être is today seen as the achievement of an agreed set of rules, a ‘level playing field’, for economic transactions within the global economy.’Footnote ¹⁸⁵ Once again, even though ‘the WTO charter formally commits it to poverty alleviation and the promotion of sustainable development, these are not seen by anyone as primary WTO objectives.’Footnote ¹⁸⁶ Helleiner says that he is ‘realist enough to recognise that reconceptualisation of the WTO as a development institution may not happen quickly’Footnote ¹⁸⁷ – and, in light of the emphasis of the second component of our theory on the long-term learning of ways of seeing, objectifying value, acquiring certain habits of ‘ethical expertise’, and so on, this realism cannot be but endorsed. But for such a conceptualisation – not only of the WTO, but also other international economic institutions – to have any chance at all, these institutions must be designed in such a manner as to allow for the effective and realistic participation of the poorest, smallest, and most remote communities of developing nations.

In making these statements we are not trying to offer anything new. The ever-growing literature on global economic governance and the role of developing economies has addressed these concernsFootnote ¹⁸⁸ – though, perhaps, less so by reference to informal, long-term aspects of institutions, and the impact of those aspects on what is seen as valuable, and what is recognised as suffering and vulnerability. Calls by some theorists for responsive regulation,Footnote ¹⁸⁹ and the work of the United Nations Commission on the Empowerment of the Poor – which has been accompanied by a welcome rebuke to the dogma of the rule of lawFootnote ¹⁹⁰ – are positive contributions, even if they do not completely rid themselves of neo-liberal inspired dogmas. Second-generation reforms ought to implement forms of institutional design that call for increased participation in the decision-making processes of international economic institutions of poor and isolated communities. Although this has been recognised by many theorists and policy-makers, and despite some changes having been made, much more work remains to be done.

2.3 Community Forums

The focus of this paper, however, is not merely on the need for an integration of the first two components of our theory of the moral quality of work. What we call for, most importantly, is the need for the third component: constant vigilance; lack of complacency; a space for developing awareness of the limitations of ways of seeing and acting; and a correlative space for enabling alertness of the infinite variety and depth of suffering and vulnerability. For even if the language of human rights were to be incorporated more fully, and even if the institutional features of democratic participation within international economic institutions were to be made more effective, pervasive and realistic, we would still be left with the limitations of those discourses and forms of institutionalisation.

We wish to propose one way in which those limitations may be brought to light, and the more positive experience of some of the particularities of suffering and vulnerability with the poorest and smallest communities may be enhanced. Our proposal is modest, particularly insofar as we are aware that it should not and cannot replace the important reform work that needs to be continued in the heart of international economic institutions. What we propose is the establishment of Community Forums (‘Forums’). These Forums can be organised around one specific problem facing a particular community, especially a small, poor and remote community. An example of such a problem is the issue of access to public goods and services, such as water or electricity, within a particular community. In the next and final part of the paper, we will illustrate some of the problems facing access to public goods and services by communities in Nigeria. The brief illustration we offer can serve as a starting point for recognising the need for a Forum, and seeing what kind of work it could achieve.

As we currently envisage it, there would be three stages to the work of a Forum. The first stage would involve members of the Forum – a mix of persons from outside the community and local members – heading out to the specific community and engaging in a portrait of the suffering and vulnerability within that community. It is important that the Forum members include persons with a variety of scholarly and artistic backgrounds. Their task is to attempt to understand, record (e.g., via interviews) and represent, in a multiplicity of media, some of the peculiar difficulties and challenges facing a specific community. In doing so, these persons are encouraged to experience the limitations of their own ethical and technical orientations, as well as the difficulties of recording and representing suffering and vulnerability.

The second stage involves the uploading of these various forms of recording and representing the plight of the community to a Forum website. The website will contain a conglomeration of written works (documents, essays, interviews, scholarly papers from a variety of disciplinary vantage points, including economic, medical, legal), visual works (photographs, paintings – not only by members by the Forum but, wherever possible, by those members of the community), and works in other media (e.g. film). The third stage is that of a launch of the website in or nearby to the community itself. It is vital that the launch include responses from representatives of various levels of government as well as figures in international economic institutions. The function of the launch is to bring to light the potential resource to policy-making offered by the portrait of some of the particularities of suffering and vulnerability within that specific community.

The proposal offered here, is of course, but a sketch. Some readers may think it is impossibly idealistic. Where, for example, would the funding for such Forums come from? Our own view is that the first step in reform is always a feat of the imagination: to provide a picture of what we should achieve, working our way back if necessary to scale down our vision. It is important to see also that the function of the Forum is not a paternalistic one: it does not even wish to impose the labels of suffering and vulnerability on persons in such communities; after all, and remarkably, members of such communities sometimes manage to find happiness, no matter how restricted, in the face of adversity.

We turn now, finally, to illustrating the specific problem of access to public goods and services in Nigeria – a problem that may be serve as a guide to the kind of problems and issues that a Forum could help tackle. Where relevant, we shall also show how the policies and practices of international economic institutions currently impact on this problem, and on the values and limitations of those policies and practices.

3.1 Nigeria

NigeriaFootnote ¹⁹¹ is the largest country in Africa, with an estimated population of 140 million occupying a land area of 924,000 square kilometers. Its population is made up of about 200 ethnic groups with an estimated 500 indigenous languages – the Hausa-Fulani in the North, Igbo in the Southeast, and Yoruba in the Southwest constitute the largest ethnic groups. Politically, Nigeria is a federation comprised of a federal government (the Executive, Legislature and Judiciary), thirty-six state governments and seven-hundred and seventy four local governments. In April 2007, Nigeria successfully conducted its third consecutive national elections since its transition from military rule which began in 1999. Nigeria is a country endowed with vast amounts of natural resources, such as gas, petroleum, tin, iron ore, coal, limestone, niobium, lead, zinc and arable land. Petroleum, however, counts as its largest income generating resource. Nigeria is ranked as the fifth largest oil producer in world today and revenues from oil account for 20% of its GDP, 95% of its foreign exchange earnings, and about 65% of its budgetary revenues.Footnote ¹⁹²

3.2 Who is poor?

Paradoxically and tragically, despite its enormous resources, millions of Nigerians live in abject poverty. As in most developing countries, poverty has and continues to be Nigeria’s most widespread predicament. Political instability, state-failure, corruption and flawed economic policies continue to deprive many Nigerians of the real or concrete benefits of its immense natural resources, the result of which is the uneven distribution of poverty within and between Nigeria’s urban and rural areas, especially amongst tribe, community, ethnicity, and gender groups. A huge variation in the rates of poverty exists amongst women, men, children, ethnic minorities and the mentally and physically impaired, which only goes to show the outrageous level of social inequalities in Nigerian society.

Local variations in poverty, however, are often dwarfed by the tendency to depict poverty in absolute monetary terms. Monetary or economic indicators remain the dominant method of seeing poverty and suffering. The latest indicators for instance, suggest that almost 70% of Nigerians live below one dollar (US$) a day.Footnote ¹⁹³ Whilst the lack of resources does, of course, bring with it all sorts of untold suffering, it fails, amongst others, to comprehend the wider social exclusions associated with poverty. The Human Development Index (‘HDI’) provides a more realistic and expansive basis of seeing or measuring poverty. It does so by moving beyond the narrow realms of Gross Domestic Product (‘GDP’) in measuring and understanding poverty. Longevity (life expectancy); education (adult literacy and enrolment into primary, secondary and tertiary schools) and decent standards of living (GDP per capita in purchasing power parity (‘PPP’) in US dollars) are all combined effects of being poor and widen the scope of our understanding of poverty. From the latest index, Nigeria ranks 158 amongst 177 countries, with life expectancy at 46.5 years, education at 69.1% and its GDP per capita (PPP US$) at 1,128.Footnote ¹⁹⁴ However, it must be recognised that the HDI is really only a partial depiction of the state of poverty – indeed, from the perspective of the third component of our theory, it is vital that we recognise that no one such measurement despair, suffering, exclusion and vulnerability is capable of being exhaustive or adequately representative. The HDI is an improvement, and, given the necessity to act, does better to inform reform policies than previous forms of measurement. It alone is not enough, however, and we cannot afford to continue to rely on it exclusively. Hence the need, as we shall argue, for alternative forms of representation of suffering and vulnerability – forms of representation that may at least be partly facilitated by a Community Forum.

3.3 Public goods and services

With the combined gross enrolment ratio for primary, secondary and tertiary schools at 56.2%, education is unquestionably deficient particularly in terms of access and not the least in terms of quality.Footnote ¹⁹⁵ This is by no means indicative of completion rates, but the adult literacy level of 69.1% gives us some indication. Equally disturbing, as noted above, is the alarming rate in life expectancy. When combined with a high infant mortality rate of 95.52 deaths (per 1,000 live births), such statistics reflect the obvious conditions of health facilities in Nigeria, particularly, relating to access to hospitals, medicines and doctors to say the least.Footnote ¹⁹⁶ Indeed, estimates suggest that only about 10% of Nigerians have access to essential drugs – a figure that presumably includes the over 2.7 million people living with HIV/AIDS.Footnote ¹⁹⁷ With regards the rate of doctors per citizens, recent data also suggests that less than 30 doctors are available to serve about 100,000 people.Footnote ¹⁹⁸ Indeed, the failings of the public health systems have seen Nigerians resort to private health services, which are estimated to provide 65.7% of the nation’s healthcare needs.Footnote ¹⁹⁹ This has supported calls for a comprehensive policy framework for the further expansion of such private services to resolve Nigeria’s healthcare crisis.

Very much related to health, well-being and the quality of life in general is the availability of water and electricity. The effect of a lack of electricity on health, however, is not sufficiently recognized. Even the WDR, to be returned to shortly, conveniently leaves out electricity from its notion of public goods.Footnote ²⁰⁰ The WDR only considers health, education and (ambiguously) water, as goods which instantiate market failures, as well as generate ‘externalities’ that merit non-dependency on markets.Footnote ²⁰¹ Nonetheless, the case of water and electricity provide more insights into the decrepit state of public goods in Nigeria. The scarcely available indicators suggest for instance, that approximately 60-70% Nigerians are without state supplied water services.Footnote ²⁰² The responsibility for water supply is shared amongst the federal government, state governments, through the state-water agencies and local governments. Indeed, given their inadequacy, about 40% of Nigerians depend on alternatives, such as private bore-holes or water vendors for their water needs. A sizeable proportion of Nigerian households, especially the poorest, have no alternatives but to depend on streams, rivers or other unhygienic sources for their daily water requirements.Footnote ²⁰³

The case of electricity is equally as abysmal, as only 40% of Nigerians have access to (inept) state-provided electricity.Footnote ²⁰⁴ This system has from the onset operated as a vertically integrated monopoly, with combined elements of generation, transmission, and distribution resting on the state-owned corporation. Until the recent repeal of the related law, electricity has been organized as a monopoly of the state.Footnote ²⁰⁵ Its monopoly status is believed by many to have contributed to its inefficiencies.Footnote ²⁰⁶ Technical reasons, such as its inability to meet its operational capacity, have also accounted for its ineptitude. For instance, in spite of the abundance of hydro, oil and gas resources, its generation capacity has always peaked at 3500-4000 MW out of a daily requirement of 6000 MW or more. Transmission is equally very poor, while distribution is in an appalling state. These operational problems are usually attributed to lack of maintenance of equipment, as a result of neglect by years of military rule, but it may have more to do with political corruption than anything else. Other problems include rising consumer debts, inadequate gas supply, devaluation of the local currency and low tariffs.Footnote ²⁰⁷ In these circumstances, many households, mainly of the upper classes, depend on standby generators for their electricity needs – a luxury that is obviously too expensive for the impoverished.

3.4 Reforms

Owing to the mere collapse of the state in public service delivery, the Nigerian government has embarked on a wide range of reforms, which began four years after the country’s transition to democratic rule. Nonetheless, the reforms are not executed without external influences; their impetus is derived from the Bank’s CDF and the WDR, Making Services Work for Poor People,Footnote ²⁰⁸ which is to date the most comprehensive policy account of the correlation between poverty and the lack of public goods and services. This 288 paged document, which itself evolved from wide range of consultations, tries to provide a framework on how to overcome the dilemma of the deficit in public goods and services.Footnote ²⁰⁹ Indeed, its main assertion is that public goods – education, healthcare, water and electricity services – fail to reach the poor because governments lack competent institutions of governance. Deteriorating public services are the result of regressive budgets (that mostly benefit the non-poor), corruption, and in many ways, government inaction. The WDR recommends a shift from government-oriented models of provisioning to a wide range of alternatives, such as increased transparency, competition, citizen involvement in monitoring, and decentralization (the provision of water and electricity to local governments). Finally, the WDR makes a case for private provisioning and charging higher user fees.Footnote ²¹⁰

The WDR recognises the importance of involving of poor people in making services work. The WDR states, for example, that we can make services work by ‘putting poor people at the centre of service provision: by enabling them to monitor and discipline service providers, by amplifying their voice in policymaking, and by strengthening the incentives for providers to serve the poor.’Footnote ²¹¹ The belief in democratic participation in general is very much consistent with the Bank’s approach to its Poverty Reduction Strategy Papers (‘PRSPs’). Both the WDR and the PRSPs are attempts to introduce concepts of country-ownership and citizen participation in the design of poverty reduction strategies.

Following on from the CDF, Nigeria developed its own PRSP: the National Economic Empowerment Development Strategy (‘NEEDS’),Footnote ²¹² as part of the broader strategy against poverty in general, and for public goods and services in particular.Footnote ²¹³ In line with the philosophy of the Bank’s WDR and PRSPs, NEEDS makes it clear that ‘empowering people and improving service delivery’ is cardinal to its objectives.Footnote ²¹⁴ As we shall see, however, despite its rhetoric, the specific concerns and proposals of NEEDS are unhelpfully narrow. NEEDS aims at achieving four goals: ‘poverty reduction, wealth creation, employment generation and value orientation.’Footnote ²¹⁵ Generally speaking, it aims to achieve these by ‘empowering people, and improving social service delivery; improving the private sector, focusing on non-oil growth; and, changing the way government works, and improving governance.’Footnote ²¹⁶ NEEDS is sympathetic to the view that seeks to insulate all government activity from the realms of production. It is a view that sees ‘government failure’Footnote ²¹⁷ as a consequence of political or bureaucratic interference, and seeks to place the economy under the governance of market rules. NEEDS makes this clear in no uncertain terms by arguing that ‘import substitution industrialization and statism’ (the previous development models) were responsible for government-failure.Footnote ²¹⁸ This view seems to conflate corruption and economic mismanagement with the ‘developmental’Footnote ²¹⁹ ethos behind such state-centred economic models. Whilst there is some truth in the argument that the ‘developmental-state’ may have been responsible for the current problems of corruption and mismanagement of the economy, it is also undeniable that the developmental-state showed greater concern for the welfare of the poor and vulnerable in society. Moreover, NEEDS overlooks, to a large extent, the effect of historical and structural problems, such as the role of the structural adjustment programme (‘SAP’) in exacerbating these problems. Are Nigerians by nature corrupt and poor or should we understand corruption and poverty as responses or products of historical circumstances? NEEDS, it would appear, seems to underestimate these constitutive social and historical dimensions of corruption and poverty. Instead, it concentrates on standard (or narrow) issues, such as removing the barriers to private enterprise and privatising means of production as mechanisms for removing corruption and, it asserts, consequently poverty.

For these reasons, NEEDS provides an institutional framework for reforming government activity through standard neo-liberal prescriptions of ‘restructuring, right-sizing, re-professionalizing and strengthening government and public institutions.’Footnote ²²⁰ At the same time, it seeks to tackle ‘corruption’, promote ‘transparency, rule of law’ and eliminate ‘rent seeking’ within government realms.Footnote ²²¹ Part of the agenda, therefore, is a renewed strategy of privatisation, deregulation and liberalisation.Footnote ²²² Indeed, NEEDS prides itself as a ‘development strategy’ predicated on the private-sector. In other-words, its stated objectives of poverty reduction, wealth creation or value creation amongst others, are to be achieved through the ethos of the private sector:

This claim provokes the following questions: Is the market by nature the most equitable means of distributing society’s resources? How do we reconcile the profit ethos of the private-sector with concerns of welfare? Does the drive for an efficient and corrupt-free society make us blind to the needs of the poor and vulnerable? Whilst the drive for privatisation does appear to have some merit in light of the spiralling levels of ‘government-failure’, it is less convincing when looked at from the point of view of equity. Whilst the prognosis of the role of the Nigerian state in production is to a large extent correct, the prescriptions seem to over-estimate their ability to resolve the myriad of problems on the ground. Subjecting public goods and services to markets overlooks the purchasing power of the poor and its broader implications for ameliorating poverty. After all, the impact of privatisation is largely dependent on the ability of poor to purchase these services. Whilst it not contentious that privatisation will attract new investors or (arguably) free up government resources, the controversy rather, is the extent to which privatisation will translate into increases of equity and access. Indeed, reforms of this nature are associated with unparalleled price increases intended at making public goods and services financially viable. Developing country experiences demonstrate that increases in tariffs (as a sequel to reforms) translate, inter alia, into market risks, enormous social hardships and inflation.Footnote ²²⁴

NEEDS appears to pay some, but largely insufficient, attention to the above concerns. In that respect, it is also, at least on the surface, at odds with statements made in the Bank’s WDR.Footnote ²²⁵ Although the WDR shows enthusiasm regarding the role of markets in improving service delivery, it also makes clear that there are limits to private market arrangements. Public goods (except electricity) for instance, are ‘replete with market failures’, in that the market alone cannot guarantee their effective or efficient delivery. In spite of this, NEEDS fails to replicate these apprehensions concerning the market. It does maintain that the Nigerian government would still be involved in ‘key areas of education, health, water supply’, but the level or nature of that involvement is open to question.Footnote ²²⁶ In the end, NEEDS privileges various forms of privatisation, including private–public partnerships (‘PPPs’), and limits community participation. This enthusiasm for PPPs fails to acknowledge that the basic principle and ethos behind public services is undermined by the introduction of private financial capital. The ethos of social solidarity and welfare in such circumstances are determined by the exigencies of profits. One example is the misleading enthusiasm for PPPs in resolving the healthcare crisis in Nigeria. Although it is true that private sector medicine has borne the brunt of the failures of the state system, it remains the case that private medicine in Nigeria is limited more by the drive for profits and high user fees.Footnote ²²⁷

It is dubious, therefore, to privilege privatisation as the only or even the most attractive option in the event of state system failure. Of course, it would also be misleading to over-romanticise community participation. We do not believe, however, that the Bank is right in its insistence that the resolution is a matter of a simple question of the choice of the lesser evils – in the Bank’s opinion, the choice of the market. Perhaps a good deal can be said in this context for locating a solution in the maintenance of a tension between these alternatives – in exploring the space between market, state and community. Recognition, however, of the complexity of these issues – and of the particularity of the problems facing any one community – is the key.

It is not enough, as proudly indicated in NEEDS, that citizens from ‘all walks of life and all parts of Nigeria were given the chance to tell the government about their needs and ambitions.’Footnote ²²⁸ Greater efforts must be made to give ‘voice’Footnote ²²⁹ to the poor in the design of policies. Whilst reform documents continue to be made in the name of the poor, in practice, decisions on policy options still essentially evolve from top-down and centralized processes. The choice, design, management and implementation of policy choices are still very much closed to participation. This is in addition to the fact that the notion of participation is often reduced to the dissemination of information and some consultation, with little, if any, realistic involvement in the making of policy decisions – particularly in the case of access to public goods and services. The choice as to whether access to public goods and services is to come from state intervention, privatisation or community participation must evolve from below. By denying the poor this ability we are essentially saying that they are incapable of making complex decisions, setting priorities or making trade-offs on such complex issues that affect their lives.

This process involves both understanding and communicating some of the particularities of the problem at hand for the specific communities in question, and understanding the limitations of reform strategies, including those of market-based, state-based and privatisation-based schemes, and their correlate values, strategies, aims and objectives. Both of these understandings may, we believe, be enhanced by the establishment of Community Forums. Nothing will happen overnight – but real change never does. The message of Community Forums is that slow, realistic and effective change must emerge in tandem, in dialogue, in careful listening to the everyday life on the ground. Only such careful listening – a listening that never ends – can help us resist the kind of complacency that makes certain institutions keep proposing the same kind of neo-liberal reforms, which have, time and again, revealed their limitations in alleviating the suffering and vulnerability of the poorest communities. That careful listening, and the alternative forms of representation of some of the particularities of the suffering and vulnerability within those communities, ought to inform the theory and policy-making of international economic institutions – but, once again, it ought never to end; that listening must keep going – it must not solidify to such an extent that it makes us blind to the infinity of suffering and vulnerability.