When states are required to compensate victim groups for the historic wrongs they have committed,... more When states are required to compensate victim groups for the historic wrongs they have committed, how should the compensation due be calculated? It seems that alongside the counterfactual world in which the wrongdoing never occurred, we should also consider the counterfactual world in which the wrongdoing has occurred, but the victims have responded to it in a prudent way. Under tort law, the damages a victim can claim are reduced if they are judged to have been contributorily negligent, thereby exacerbating the harm they have suffered. The paper considers four reasons why victim groups could not be expected to respond collectively to injustice in a way that outsiders might judge to be prudent. 1. The wrongdoing has destroyed their capacity to act as a group agent. 2. The wrongdoing has inflicted psychological traumas that lead them to make poor decisions. 3. They would need to violate a moral norm that is deeply embedded in their culture. 4. They would need to adopt policies that risk inflicting severe injustice on an internal minority. In many instances of historic injustice, one or more of these reasons apply. So although in principle victims' behaviour is relevant when compensation is being calculated, we must be very cautious in using that doctrine to assess real cases.
What difference might it make to the duty of rescue if the victim is responsible for needing to b... more What difference might it make to the duty of rescue if the victim is responsible for needing to be rescued? Having distinguished the natural duty of rescue owed as a result of a chance encounter from the artificial duties of rescue that may be created by agreement among participants in high-risk activities, I examine three ways in which the victim's responsibility might lessen the stringency of the duty: by lowering the cost threshold above which rescue ceases to be a duty; by lessening the force of the duty when it competes with other duties of justice; and by making the duty unenforceable by third parties. I then consider different forms the victim's responsibility may take: simple negligence, deliberate risk taking, and engaging in wrongful behaviour. There are only two circumstances in which the duty of rescue is entirely eliminated as a duty: when by virtue of repeated risk taking, the victim unfairly imposes excessive costs on his rescuer, and when rescuing the victim would allow him to continue threatening harm to others. In other cases, however, responsibility considerations should qualify the natural duty of rescue: rescue should not be a responsibility-free zone.
This article explores, comparatively and critically, Sidgwick's and Rawls's reasons for rejecting... more This article explores, comparatively and critically, Sidgwick's and Rawls's reasons for rejecting desert as a principle of distributive justice. Their ethical methods, though not identical, each require giving weight to common sense convictions about justice as well as higher-level principles. Both men, therefore, need to find a substitute for desert that captures some of its content-in Sidgwick's case 'quasi-desert' takes the form of an incentive principle, and in Rawls's case a principle of legitimate entitlement. However their reasons for rejecting desert are unclear, and at points appear to rest on contestable conceptual or metaphysical claims that their methodological commitments are meant to rule out. To clarify matters, the article distinguishes between three levels at which antidesert arguments may operate: 1) Those purporting to reveal some fundamental defect in the idea of desert itself; 2) Those purporting to show that we cannot find a coherent basis for desert, at least for purposes of social justice; 3) Those purporting to show that it is impossible for social institutions to reward people according to their deserts, no matter which basis is chosen. At each level, the arguments put forward by Sidgwick and by Rawls are shown to be unsound.
States claim to have authority over prospective immigrants who have not yet been admitted but are... more States claim to have authority over prospective immigrants who have not yet been admitted but are nonetheless expected to comply with immigration law. But what could ground such an authority claim? The service conception of authority defended by Raz appears not to apply in this case. Nor can it be argued that immigrants give their consent to the state by applying for admission. Another approach appeals to the practice of reciprocity between states in respecting each other's immigration regimes, but many immigrants will fall outside of its scope. Instead, the article defends the view that the natural duty of justice requires immigrants to comply with the state's immigration regime provided that it is reasonably just. This does not require that the immigrant herself should have authorised the regime through democratic participation. However, the natural duty argument has to be qualified by recognising that some migrants can legitimately appeal to necessity as grounds for breaching the duty and entering unauthorised.
The national identity argument holds that a shared national identity is necessary to motivate cit... more The national identity argument holds that a shared national identity is necessary to motivate citizens in democratic societies to pursue a number of goals, especially social justice. We review the empirical evidence for and against this claim, looking particularly at how national identities have been measured. We distinguish between studies that aim to compare the relative strength of identities cross-nationally and those that look at individual differences within one nation. We separate four dimensions of national identity: national attachment, national pride, critical vs. uncritical patriotism, and civic vs. cultural conceptions of identity. These are only weakly correlated with each other, and impact differently on support for social justice and the welfare state. Using case studies from the United States, Canada, and the United Kingdom, we suggest that the relationship between national identity and social justice varies between societies, and that a key factor is finding an appr...
Is it possible for a liberal society to have an established church? After outlining the condition... more Is it possible for a liberal society to have an established church? After outlining the conditions for liberal establishment, I take from David Hume a secular argument in its favour that points to the moderating effect of establishment on religious discourse and practice. I examine the claim that state support for religion violates liberal equality, and argue that, with respect to state-provided public goods generally, what matters is that the whole package should be of roughly equal benefit to each citizen; it is not required that every citizen should value each distinct good. I claim that religious establishment can have valuable effects for both believers and non-believers, and thereby count as a public good. I then examine the charge that establishment always conveys a message of disparagement to those outside the favoured church, making them into second-class citizens, as both Martha Nussbaum and Cécile Laborde have claimed. Understood as a claim about the experience of minorit...
The paper begins by locating the issue of trade within the broader literature on international an... more The paper begins by locating the issue of trade within the broader literature on international and global justice. It then sets out eight different conceptions of ‘fair trade’, and examines the principles that lie behind them. They fall into three broad categories: procedural fairness accounts, which apply principles of equal treatment to the international rules under which trade takes place; producers’ entitlement accounts, which claim that trade must be structured so that all participants are safeguarded against harms such as exploitation or poverty; and fair exchange accounts, which require trade to be conducted on terms that produce a particular division of resources or benefits between the trading partners. These conceptions are partly complementary, but may on occasion pull in different directions, requiring us to reflect on the relative weights we attach to different aspects of fairness in trade.
The problem raised when democratic majorities take decisions that impose restrictions on religiou... more The problem raised when democratic majorities take decisions that impose restrictions on religious minorities may be avoided through ‘the strategy of privatization’, but not when the issue is the character of public space. This article considers a challenging case: the Swiss referendum decision to ban any future construction of Islamic minarets. It examines two grounds for opposition: the human right to freedom of religion, and the liberal principle of equal treatment of cultures. It argues that the human right is too limited, and that the equal treatment principle can be trumped by considerations of national identity when public space is involved. Nevertheless, the content of that identity and its public expression must remain open to democratic deliberation, and the Swiss decision can be faulted on those grounds.
This article reconstructs and reflects on the 1989 debate between Jerry Cohen and myself on marke... more This article reconstructs and reflects on the 1989 debate between Jerry Cohen and myself on market socialism in the light of Cohen's ongoing defence of communitarian socialism. It presents Cohen's view of market socialism as ethically deficient but a modest improvement on capitalism, and outlines some market socialist proposals from the 1980s. Our debate centred on the issues of distributive justice and community. I had argued that a market economy might be justified by appeal to desert based on productive contribution, but Cohen saw effort as the only relevant desert base, and claimed that only non-comparative judgements of economic desert were possible. Market-derived inequalities, therefore, could not be deserved. He also condemned markets for relying on the motives of greed and fear, and therefore as destructive of community. In reply, I asserted that markets also liberated people from fixed social roles, and that market competition could be viewed differently, as provid...
The paper explores the basis of the responsibilities we owe to refugees. That we have such respon... more The paper explores the basis of the responsibilities we owe to refugees. That we have such responsibilities is a very widely shared intuition: the need of those fleeing from persecution seems to call out for a response on our part. But what exactly are our obligations to such people? Who are they owed to and why do we have them? The paper argues in favour of a human rights approach to refugee protection that includes the requirement of the implementation of a burden sharing scheme.
This article begins by analysing the idea of territorial rights. It argues that the rights over t... more This article begins by analysing the idea of territorial rights. It argues that the rights over territory standardly claimed by states can be separated into three main elements: the right of jurisdiction, the right to the territory's resources and the right to control borders. A full justification of territorial rights must therefore address each of these three elements. It proceeds to examine theories that treat states as the primary holders of territorial rights. Utilitarian theories (such as Sidgwick's) maintain that states acquire such rights simply by maintaining social order over the relevant territory. Such theories are insufficiently discriminating and cannot deal adequately with the issues raised by invasion and secession. An alternative view adds the condition that the state must be the legitimate representative of the people who (innocently) occupy the territory, but this too faces an objection. A historical version of the statist theory claims that states gain te...
Politics.” Annals of the Association of American Geographers 95:437–61. Agnew, John, and Stuart C... more Politics.” Annals of the Association of American Geographers 95:437–61. Agnew, John, and Stuart Corbridge. 1995. Mastering Space. Hegemony, Territory and International Political Economy. London: Routledge. Arendt, Hannah. 2004. The Origins of Totalitarianism. New York: Schocken Books. Biersteker, Thomas. 2013. “State, Sovereignty and Territory.” In Handbook of International Relations, 2nd ed., edited by Carlsneas Walter, Risse Thomas, and Simmons Beth, 245–72. London: Sage. Badiou, Alain. 2011. “The Democratic Emblem.” In Democracy in What State?, edited by Agamben Giorgio, 6–15. New York: Columbia University Press. Connolly, William. 1994. “Tocqueville, Territory and Violence.” Theory, Culture & Society 11: 19–41. Elden, Stuart. 2009. Terror and Territory. The Spatial Extent of Sovereignty. Minneapolis, MN: University of Minnesota Press. —— 2010a. “Thinking Territory Historically.” Geopolitics 15:757–61. —— 2010b. “Land, Terrain, Territory.” Progress in Human Geography 34:799–81. —— 2013. The Birth of Territory. Chicago: University of Chicago Press. Kolers, Avery. 2009. Land, Conflict, and Justice. Cambridge: Cambridge University Press. Krasner, Stephen D. 1999. Sovereignty. Organized Hypocrisy. Princeton, NJ: Princeton University Press. —— 2001a. “Rethinking the Sovereign State Model.” Review of International Studies 27(1): 17–42. —— 2001b. “Abiding Sovereignty.” International Political Science Review 22(3):229–51. Miller, David. 2012. “Territorial Rights: Concept and Justification.” Political Studies 60(2):252–68. Mann,Michael. 1997. “HasGlobalization Ended the Rise and Rise of theNation-State?”Review of International Political Economy 4:472–96. Nine, Cara. 2012. Global Justice and Territory. Oxford: Oxford University Press. Steiner, Hillel. 1998. “Territorial Justice.” In Theories of Secession, edited by Percy B. Lehning, 61–70. London: Routledge. Stilz, Anna. 2011. “Nations, States, and Territory.” Ethics 121(3):572–601. Weiss, Lynda. 1998. The Myth of the Powerless State. Ithaca NY: Cornell University Press.
This article argues that there is no human right to cross borders without impediment. Receiving s... more This article argues that there is no human right to cross borders without impediment. Receiving states, however, must recognize the procedural rights of those unable to protect their human rights in the place where they currently reside. Asylum claims must be properly investigated, and in the event that the state declines to admit them as refugees, it must ensure that the third country to which they are transferred can protect their rights. Both procedural and substantive rights apply while refugees are physically present in the state’s territory and their immigration status is being investigated. The state’s obligation to protect these rights arises from the power it exercises over them. In contrast, the state does not exercise equivalent power over those it declines to admit in the first place, even though its immigration criteria – if discriminatory in the negative sense – can be faulted on other grounds. Beneath these arguments lie two basic assumptions: one is the need to separ...
When states are required to compensate victim groups for the historic wrongs they have committed,... more When states are required to compensate victim groups for the historic wrongs they have committed, how should the compensation due be calculated? It seems that alongside the counterfactual world in which the wrongdoing never occurred, we should also consider the counterfactual world in which the wrongdoing has occurred, but the victims have responded to it in a prudent way. Under tort law, the damages a victim can claim are reduced if they are judged to have been contributorily negligent, thereby exacerbating the harm they have suffered. The paper considers four reasons why victim groups could not be expected to respond collectively to injustice in a way that outsiders might judge to be prudent. 1. The wrongdoing has destroyed their capacity to act as a group agent. 2. The wrongdoing has inflicted psychological traumas that lead them to make poor decisions. 3. They would need to violate a moral norm that is deeply embedded in their culture. 4. They would need to adopt policies that risk inflicting severe injustice on an internal minority. In many instances of historic injustice, one or more of these reasons apply. So although in principle victims' behaviour is relevant when compensation is being calculated, we must be very cautious in using that doctrine to assess real cases.
What difference might it make to the duty of rescue if the victim is responsible for needing to b... more What difference might it make to the duty of rescue if the victim is responsible for needing to be rescued? Having distinguished the natural duty of rescue owed as a result of a chance encounter from the artificial duties of rescue that may be created by agreement among participants in high-risk activities, I examine three ways in which the victim's responsibility might lessen the stringency of the duty: by lowering the cost threshold above which rescue ceases to be a duty; by lessening the force of the duty when it competes with other duties of justice; and by making the duty unenforceable by third parties. I then consider different forms the victim's responsibility may take: simple negligence, deliberate risk taking, and engaging in wrongful behaviour. There are only two circumstances in which the duty of rescue is entirely eliminated as a duty: when by virtue of repeated risk taking, the victim unfairly imposes excessive costs on his rescuer, and when rescuing the victim would allow him to continue threatening harm to others. In other cases, however, responsibility considerations should qualify the natural duty of rescue: rescue should not be a responsibility-free zone.
This article explores, comparatively and critically, Sidgwick's and Rawls's reasons for rejecting... more This article explores, comparatively and critically, Sidgwick's and Rawls's reasons for rejecting desert as a principle of distributive justice. Their ethical methods, though not identical, each require giving weight to common sense convictions about justice as well as higher-level principles. Both men, therefore, need to find a substitute for desert that captures some of its content-in Sidgwick's case 'quasi-desert' takes the form of an incentive principle, and in Rawls's case a principle of legitimate entitlement. However their reasons for rejecting desert are unclear, and at points appear to rest on contestable conceptual or metaphysical claims that their methodological commitments are meant to rule out. To clarify matters, the article distinguishes between three levels at which antidesert arguments may operate: 1) Those purporting to reveal some fundamental defect in the idea of desert itself; 2) Those purporting to show that we cannot find a coherent basis for desert, at least for purposes of social justice; 3) Those purporting to show that it is impossible for social institutions to reward people according to their deserts, no matter which basis is chosen. At each level, the arguments put forward by Sidgwick and by Rawls are shown to be unsound.
States claim to have authority over prospective immigrants who have not yet been admitted but are... more States claim to have authority over prospective immigrants who have not yet been admitted but are nonetheless expected to comply with immigration law. But what could ground such an authority claim? The service conception of authority defended by Raz appears not to apply in this case. Nor can it be argued that immigrants give their consent to the state by applying for admission. Another approach appeals to the practice of reciprocity between states in respecting each other's immigration regimes, but many immigrants will fall outside of its scope. Instead, the article defends the view that the natural duty of justice requires immigrants to comply with the state's immigration regime provided that it is reasonably just. This does not require that the immigrant herself should have authorised the regime through democratic participation. However, the natural duty argument has to be qualified by recognising that some migrants can legitimately appeal to necessity as grounds for breaching the duty and entering unauthorised.
The national identity argument holds that a shared national identity is necessary to motivate cit... more The national identity argument holds that a shared national identity is necessary to motivate citizens in democratic societies to pursue a number of goals, especially social justice. We review the empirical evidence for and against this claim, looking particularly at how national identities have been measured. We distinguish between studies that aim to compare the relative strength of identities cross-nationally and those that look at individual differences within one nation. We separate four dimensions of national identity: national attachment, national pride, critical vs. uncritical patriotism, and civic vs. cultural conceptions of identity. These are only weakly correlated with each other, and impact differently on support for social justice and the welfare state. Using case studies from the United States, Canada, and the United Kingdom, we suggest that the relationship between national identity and social justice varies between societies, and that a key factor is finding an appr...
Is it possible for a liberal society to have an established church? After outlining the condition... more Is it possible for a liberal society to have an established church? After outlining the conditions for liberal establishment, I take from David Hume a secular argument in its favour that points to the moderating effect of establishment on religious discourse and practice. I examine the claim that state support for religion violates liberal equality, and argue that, with respect to state-provided public goods generally, what matters is that the whole package should be of roughly equal benefit to each citizen; it is not required that every citizen should value each distinct good. I claim that religious establishment can have valuable effects for both believers and non-believers, and thereby count as a public good. I then examine the charge that establishment always conveys a message of disparagement to those outside the favoured church, making them into second-class citizens, as both Martha Nussbaum and Cécile Laborde have claimed. Understood as a claim about the experience of minorit...
The paper begins by locating the issue of trade within the broader literature on international an... more The paper begins by locating the issue of trade within the broader literature on international and global justice. It then sets out eight different conceptions of ‘fair trade’, and examines the principles that lie behind them. They fall into three broad categories: procedural fairness accounts, which apply principles of equal treatment to the international rules under which trade takes place; producers’ entitlement accounts, which claim that trade must be structured so that all participants are safeguarded against harms such as exploitation or poverty; and fair exchange accounts, which require trade to be conducted on terms that produce a particular division of resources or benefits between the trading partners. These conceptions are partly complementary, but may on occasion pull in different directions, requiring us to reflect on the relative weights we attach to different aspects of fairness in trade.
The problem raised when democratic majorities take decisions that impose restrictions on religiou... more The problem raised when democratic majorities take decisions that impose restrictions on religious minorities may be avoided through ‘the strategy of privatization’, but not when the issue is the character of public space. This article considers a challenging case: the Swiss referendum decision to ban any future construction of Islamic minarets. It examines two grounds for opposition: the human right to freedom of religion, and the liberal principle of equal treatment of cultures. It argues that the human right is too limited, and that the equal treatment principle can be trumped by considerations of national identity when public space is involved. Nevertheless, the content of that identity and its public expression must remain open to democratic deliberation, and the Swiss decision can be faulted on those grounds.
This article reconstructs and reflects on the 1989 debate between Jerry Cohen and myself on marke... more This article reconstructs and reflects on the 1989 debate between Jerry Cohen and myself on market socialism in the light of Cohen's ongoing defence of communitarian socialism. It presents Cohen's view of market socialism as ethically deficient but a modest improvement on capitalism, and outlines some market socialist proposals from the 1980s. Our debate centred on the issues of distributive justice and community. I had argued that a market economy might be justified by appeal to desert based on productive contribution, but Cohen saw effort as the only relevant desert base, and claimed that only non-comparative judgements of economic desert were possible. Market-derived inequalities, therefore, could not be deserved. He also condemned markets for relying on the motives of greed and fear, and therefore as destructive of community. In reply, I asserted that markets also liberated people from fixed social roles, and that market competition could be viewed differently, as provid...
The paper explores the basis of the responsibilities we owe to refugees. That we have such respon... more The paper explores the basis of the responsibilities we owe to refugees. That we have such responsibilities is a very widely shared intuition: the need of those fleeing from persecution seems to call out for a response on our part. But what exactly are our obligations to such people? Who are they owed to and why do we have them? The paper argues in favour of a human rights approach to refugee protection that includes the requirement of the implementation of a burden sharing scheme.
This article begins by analysing the idea of territorial rights. It argues that the rights over t... more This article begins by analysing the idea of territorial rights. It argues that the rights over territory standardly claimed by states can be separated into three main elements: the right of jurisdiction, the right to the territory's resources and the right to control borders. A full justification of territorial rights must therefore address each of these three elements. It proceeds to examine theories that treat states as the primary holders of territorial rights. Utilitarian theories (such as Sidgwick's) maintain that states acquire such rights simply by maintaining social order over the relevant territory. Such theories are insufficiently discriminating and cannot deal adequately with the issues raised by invasion and secession. An alternative view adds the condition that the state must be the legitimate representative of the people who (innocently) occupy the territory, but this too faces an objection. A historical version of the statist theory claims that states gain te...
Politics.” Annals of the Association of American Geographers 95:437–61. Agnew, John, and Stuart C... more Politics.” Annals of the Association of American Geographers 95:437–61. Agnew, John, and Stuart Corbridge. 1995. Mastering Space. Hegemony, Territory and International Political Economy. London: Routledge. Arendt, Hannah. 2004. The Origins of Totalitarianism. New York: Schocken Books. Biersteker, Thomas. 2013. “State, Sovereignty and Territory.” In Handbook of International Relations, 2nd ed., edited by Carlsneas Walter, Risse Thomas, and Simmons Beth, 245–72. London: Sage. Badiou, Alain. 2011. “The Democratic Emblem.” In Democracy in What State?, edited by Agamben Giorgio, 6–15. New York: Columbia University Press. Connolly, William. 1994. “Tocqueville, Territory and Violence.” Theory, Culture & Society 11: 19–41. Elden, Stuart. 2009. Terror and Territory. The Spatial Extent of Sovereignty. Minneapolis, MN: University of Minnesota Press. —— 2010a. “Thinking Territory Historically.” Geopolitics 15:757–61. —— 2010b. “Land, Terrain, Territory.” Progress in Human Geography 34:799–81. —— 2013. The Birth of Territory. Chicago: University of Chicago Press. Kolers, Avery. 2009. Land, Conflict, and Justice. Cambridge: Cambridge University Press. Krasner, Stephen D. 1999. Sovereignty. Organized Hypocrisy. Princeton, NJ: Princeton University Press. —— 2001a. “Rethinking the Sovereign State Model.” Review of International Studies 27(1): 17–42. —— 2001b. “Abiding Sovereignty.” International Political Science Review 22(3):229–51. Miller, David. 2012. “Territorial Rights: Concept and Justification.” Political Studies 60(2):252–68. Mann,Michael. 1997. “HasGlobalization Ended the Rise and Rise of theNation-State?”Review of International Political Economy 4:472–96. Nine, Cara. 2012. Global Justice and Territory. Oxford: Oxford University Press. Steiner, Hillel. 1998. “Territorial Justice.” In Theories of Secession, edited by Percy B. Lehning, 61–70. London: Routledge. Stilz, Anna. 2011. “Nations, States, and Territory.” Ethics 121(3):572–601. Weiss, Lynda. 1998. The Myth of the Powerless State. Ithaca NY: Cornell University Press.
This article argues that there is no human right to cross borders without impediment. Receiving s... more This article argues that there is no human right to cross borders without impediment. Receiving states, however, must recognize the procedural rights of those unable to protect their human rights in the place where they currently reside. Asylum claims must be properly investigated, and in the event that the state declines to admit them as refugees, it must ensure that the third country to which they are transferred can protect their rights. Both procedural and substantive rights apply while refugees are physically present in the state’s territory and their immigration status is being investigated. The state’s obligation to protect these rights arises from the power it exercises over them. In contrast, the state does not exercise equivalent power over those it declines to admit in the first place, even though its immigration criteria – if discriminatory in the negative sense – can be faulted on other grounds. Beneath these arguments lie two basic assumptions: one is the need to separ...
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