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The Law and Economics of Global Justice - Global Justice. Edited by Thomas W. Pogge. Oxford: Blackwell Publishers, 2001. Pp. vi, 272. Index. $27.95, £16.99, paper.
Published online by Cambridge University Press: 27 February 2017
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References
1 For more on this analogy, see Jeffrey, L. Dunoff & Joel, P. Trachtman, The Law and Economics of International Law, 24 Yale J. Int’l L. 1 (1999)Google Scholar.
2 See, e.g., Marks, Susan, Big Brother Is Bleeping Us— With the Message That Ideology Doesn’t Matter, 12 Eur. J. Int’l L. 109 (2001)CrossRefGoogle Scholar.
3 Frank Garcia has brought these concerns to the foreground in his work. See, e.g., Frank, J. Garcia, Building a Just Trade Order for a New Millennium, 33 Geo. Wash. Int’l L. Rev. 1015 (2001)Google Scholar.
4 See, e.g., Kaplow, Louis & Shavell, Steven, Fairness Versus Welfare (2002)CrossRefGoogle Scholar.
5 By “distributive justice,” I mean the question of allocation of social resources. See Lament, Julian, Distributive Justice, in Stanford Encyclopedia of Philosophy (Edward, N. Zalta ed., Fall 2002)Google Scholar, at <http://plato.stanford.edu/entries/justice-distributive/>.
6 See also Cohen, G. A., If You’re An Egalitarian, How Come You’re So Rich? (1999)Google Scholar.
7 For this reason, his essay will serve here as a useful foil for discussing the other authors’ contributions to the volume.
8 It is certainly not outside the bounds of plausibility to argue that persons appropriating more than an equal share “are imposing an unjust distribution on some or all of those who have appropriated a less than equal portion.” Hillel Steiner, an Essay on Rights 268 (1994).
9 See, e.g., Stiglitz, Joseph, Globalization and Its Discontents (2002)Google Scholar.
10 See, e.g., Oxfam, Rigged Rules and Double Standards: Trade, Globalisation and the Fight Against Poverty (2002), available at <http://www.maketradefair.com>. While it is not possible to agree with all of the claims made in this Report (indeed, there are substantial errors in the Report), it has already served a useful purpose in broadening and deepening discussions, and making these discussions accessible to a wider audience.
11 See supra note 10; Bhagwati, Jagdish, The Poor’s Best Hope, Economist, June 22, 2002, at 24 Google Scholar.
12 See Rawls, John, A Theory of Justice (1971)CrossRefGoogle Scholar. Rawls uses the heuristic of an original position, in which the members of a society decide upon its basic structure from behind a “veil of ignorance,” in which they are ignorant of the actual position and endowments that they will enjoy in society. He then seeks to develop an understanding of the principles of justice on which individuals would agree in such a position. His second principle of justice postulates that economic inequality is justified only to the extent that it is necessary to improve the position of the least well off members of society. The first principle of justice, which we do not pursue further, is that each member of society has an equal right to the maximum amount of liberty consistent with each other member of society having an equal amount of liberty.
13 Véronique Zanetti (“Global Justice: Is Interventionism Desirable?”) carefully distinguishes (see pp. 210-11) arguments made by Brian Barry and Charles Beitz, which do not depend on causation in this sense.
14 For a strong response to the idea that there can be no democracy or solidarity except at the level of the state, see Jürgen, Habermas, So Why Does Europe Need a Constitution? at Google Scholar <http://www.iue.it/RSC/PublicationsRSCWelcome.htm> (2001) (European University Institute, Robert Schuman Centre of Advanced Studies, Series on Constitutional Reform of the European Union).
15 Pogge’s juxtaposition of “perpetuation” and “aggravation” shows that he is at least ambivalent about the charge of causation, if causation requires more than failure to redress.
16 See Rawls, John, The Law of Peoples (1999)Google Scholar [hereinafter Law of Peoples].
17 See id. at 10 (interpreting Kant’s foedus pacifieum “to mean that we are to begin with the social contract idea of the liberal political conception of a constitutionally democratic régime and then extend it by introducing a second original position at the second level, so to speak, in which the Representatives of liberal peoples make an agreement with other liberal peoples”).
18 Id. at 105-20. The “duty of assistance” is merely a duty to assist “burdened” societies to manage their affairs “rationally and reasonably.”
19 For Rawls’s views, see id. at 115-20.
20 This issue is touched upon in Simon Caney’s essay, “Cosmopolitan Justice and Equalizing Opportunities.”
21 Wight, Martin, Why There Is No International Theory, in Diplomatic Investigations: Essays in the Theory of International Politics 17 (Butterfield, Herbert & Wight, Martin eds., 1966)Google Scholar.
22 But see Charles, R. Beitz’s Review Essay: International Liberalism and Distributive Justice: A Survey of Recent Thought, 51 World Pol. 269, 290 (1999)Google Scholar, stating that “I believe that the philosophical weakness most characteristic of cosmopolitan theories—although not found equally in all of them—is a failure to take seriously enough the associative relationships that individuals do and almost certainly must develop to live successful and rewarding lives.” However, Beitz accepts a kind of federal possibility: “ [I]t is hardly clear that a sophisticated cosmopolitanism cannot explain how local affiliations might give rise to special responsibilities. Such a view would recognize the value to individuals of their associations with domestic or local communities and argue that ethically significant properties of these associations justify internal distributive arrangements that are different from, although not inconsistent with, what is required by global principles.” Id. (citations omitted).
23 For this point on normative individualism, Wenar cites Follesdal, Andreas, The Standing of Illiberal States, Stability and Toleration in John Rawls’ ‘Law of Peoples, 118 ACTA Analytica 149 (1997)Google Scholar.
24 Stefan Gosepath makes this point well:
Justice can no longer be conceived in terms of the nation-state when nation-states are increasingly losing their original power to supranational actors— when supranational political alliances such as the European Union and the North Atlantic Treaty Organization, and internationally operating corporations with enormous amounts of private money, are much bigger, stronger, and more flexible than many states could be. (Pp. 154—55)
25 Law of Peoples, supra note 16, at 30-31.
26 The “equal opportunity principle” is part of Rawls’s second principle of justice. It prescribes that offices and positions associated with economic and social advantages are to be open to all on the basis of equality of opportunity. Chauvier is concerned that if states are not fully self-sufficient, individuals in states will not have full equality of opportunity, at least in the sense of the opportunity to choose their own governance. I would argue, however, that individuals can continue to choose governance at a level above the state—and thereby continue to enjoy equality of opportunity despite constraints on the state itself.
27 “Moral hazard” is an economic concept describing a circumstance in which individuals do not bear the full adverse consequences of their decisions, and so may have perverse incentives to act in a way that diminishes social welfare. A “soft market constraint,” see infra text accompanying note 28, is a similar circumstance in which individuals or firms will not be permitted to fail, or experience bankruptcy, and therefore will make suboptimal economic decisions. Such a constraint might exist, for example, if the government stands ready to “bail out” firms that would otherwise fail.
28 Rawls makes this argument explicitly, though not in exactly the same terms. See Law of Peoples, supra note 16, at 8.
29 It is also worth noting the “flip side” of this argument: that states would have reduced incentives to become wealthy due to the prospect that they would be taxed to help the poor. Of course, this argument has no more impact internationally than it would in domestic society; the difference principle seems to survive this concern.
30 See Law of Peoples, supra note 16, at 37.
31 With some skepticism, Zanetti (p. 211) quotes Charles, R. Beitz, Political Theory and International Relations 182-83 (1979)Google Scholar: “It is important to distinguish moral structures from political ones, and to recognize that global normative principles might be implemented otherwise than by global institutions conceived on the analogy of the state.”
32 See, e.g., Krueger, Anne, International Financial Architecture for 2002: A New Approach to Sovereign Debt Restructuring (2001)Google Scholar, at <http://www.imf.org/external/np/speeches/2001/112601.htm>; Richard N. Cooper, Chapter 11 for Countries, Foreign Aff., July/August 2002, at 90.
33 By “general international legal system” I mean the customary international law of jurisdiction, treaty, and custom—which is the foundation on which international organizations such as the United Nations and the WTO are built.
34 In Realizing Rawls, at 7, Pogge goes further, to suggest that international institutions are imposed by the rich on the poor through coercion. In this volume, Wenar raises some important caveats: “To assent that there is coercion [in the WTO], one should want to be precise about who is threatening whom and why these are threats and not offers” (p. 80). He continues by declaring, “But there can be little doubt about the coercive imposition of the basic system of limited state sovereignty and international relations that the West has imposed on the world, and which continues to be upheld by the economically and militarily dominant countries” (id., citing other works of Hurrell and Pogge). In economic theory, there is no real difference between a threat and an offer: “your money or your life” and “if you do not reduce your price, I will find another seller” are both threats and offers. Of course, the difference in law is that in domestic law, the threat and action of murder are illegal, and in international law military coercion is generally illegal. In any event, as noted above, one of the merits of the difference principle is that it does not rely on proof of coercion or causation: its obligations exist independent of such matters.
35 See Roberto, Mangabeira Unger, What Should Legal Analysis Become? (1996)Google Scholar.
36 See Joel, P. Trachtman, The Theory of the Firm and the Theory of the International Economic Organization: Toward Comparative Institutional Analysis, 17 Nw. J. Int’l L. & Bus. 470 (1997)Google Scholar.
37 For an argument that each individual must not only work to achieve social arrangements that are just, but also act individually to redistribute in accordance with justice, see COHEN, supra note 6. The collective-action problems and other motivational problems addressed in Global Justice provide some basis for a pragmatic response to Cohen but do not address his ethical case.
38 See Alain, Noël & Jean-Philippe, Thérien, Public Opinion and Global Justice, 35 Comp. Pol. Stud. 631 (2002)Google Scholar.
39 See Mitrany, David, A Working Peace System (1943)Google Scholar.
40 Jean-Jacques, Rousseau, On the Social Contract, bk. II, chap. 12, para. 2 (Donald, A. Cress trans., 1983)Google Scholar.
41 “You are not required to finish the task, but neither are you free to abstain from it.” Pirke Avot 2:21.
41 I thank David Bederman, Samantha Besson, and Frank Garcia for helpful comments on a draft of this review.