Human Rights and Global Justice: The 10th Kobe Lectures, July 2011 9783515104890

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Human Rights and Global Justice The 10th Kobe Lectures, July 2011 Edited by Tetsu Sakurai and Makoto Usami

ARSP Beiheft 139 Franz Steiner Verlag

Archiv für Rechts- und Sozialphilosophie

Human Rights and Global Justice Edited by Tetsu Sakurai and Makoto Usami

archiv für rechts- und sozialphilosophie archives for philosophy of law and social philosophy archives de philosophie du droit et de philosophie sociale archivo de filosofía jurídica y social Herausgegeben von der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) Redaktion: Dr. Annette Brockmöller, LL. M. Beiheft 139

Human Rights and Global Justice The 10th Kobe Lectures, July 2011 Edited by Tetsu Sakurai and Makoto Usami

Franz Steiner Verlag

Bibliografische Information der Deutschen Nationalbibliothek: Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist unzulässig und strafbar. © Franz Steiner Verlag, Stuttgart 2014 Druck: Druckhaus Nomos, Sinzheim Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany. Franz Steiner Verlag: ISBN 978-3-515-10489-0 Nomos Verlag: ISBN 978-3-8487-1014-0

CONTENTS Tetsu Sakurai Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

Makoto Usami Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9

PART 1 CONDITIONALITY

OF

HUMAN RIGHTS

David Miller Are Human Rights Conditional? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

Tetsu Sakurai Human Rights and International Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

35

Katsu Tomisawa Human Rights as Reciprocity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

45

Hirohide Takikawa Are Human Rights Forfeitable? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

55

PART 2 GLOBAL JUSTICE

AND

NATIONAL RESPONSIBILITY

Tatsuo Inoue Miller’s Two Souls: What Does Their “Cohabitation” End in? . . . . . . . . . . . .

71

Ko Hasegawa Getting through National Responsibility toward Global Justice. . . . . . . . . . . .

81

Fumihiko Ishiyama National Responsibility: What Special Relevance Does It Have to the World As It Is? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

89

Yuko Kamishima Needs, Capabilities and Global Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

97

6 PART 3 CAPITALISM, CULTURE

AND

COSMOPOLITANISM

Yasuhiko Itoh Global Capitalism and Global Justice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Teruhisa Se The Prerequisites of Cross-Cultural Dialogue on Human Rights . . . . . . . . . . . 117 Seiko Urayama On Weak Cosmopolitanism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Chikako Endo Citizenship, Nationality and Collective Responsibility . . . . . . . . . . . . . . . . . . 139 PART 4 RESPONSE David Miller Human Rights and Global Justice: A Response . . . . . . . . . . . . . . . . . . . . . . . . 153 List of Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

TETSU SAKURAI PREFACE In the summer of 2011 David Miller, Professor of Political Theory at Oxford University, was invited to give the tenth Kobe Lecture. The Kobe Lecture was first established in 1988 in order to commemorate the Thirteenth IVR World Congress that had taken place in Kobe the year before, and is sponsored by the Japanese National Section of the International Association for Philosophy of Law and Social Philosophy (IVR Japan) in collaboration with the Japan Association of Legal Philosophy (JALP). An internationally renowned scholar engaged in research on critical issues of legal, political and social philosophy is invited to give the Kobe Lecture every three years, previous lecturers having included Ronald Dworkin, Ralf Dreier, Joseph Raz, Will Kimlicka, Randy Barnett, Emilios Christodoulidis, Ulfrid Neumann and Cass Sunstein. As well as delivering his lecture, which was entitled “Are Human Rights Conditional?”, at Doshisha University, Kyoto, on 9 July 2011, Professor Miller conducted seminars in Tokyo, Nagoya, Osaka and Fukuoka. Both the lecture and seminars were held under the umbrella title of “Human Rights and Global Justice,” which eventually became the title of this special volume in Archiv für Rechts- und Sozialphilosophie. By combining the two key concepts from Professor Miller’s titles – his Kobe Lecture and his book National Responsibility and Global Justice (2007) – Human Rightsand Global Justice represents our shared belief that guaranteeing basic human rights is an essential element of global justice. It is, then, little wonder that many of the writings contained in this volume deal with the close relationship between global justice and the realization of fundamental human rights. Needless to say, David Miller is one of the world’s leading political theorists, particularly as concerns global and social justice. His recent books, notably On Nationality (1995) and National Responsibility and Global Justice, have attracted much attention from political and legal philosophers, not least in Japan, where three of his books had already been published in translation before his visit. In his earlier writings Professor Miller was well known for his particularistic view that contemporary concepts of justice should derive from the specific arrangements of market society, and for his detailed study of David Hume’s political thought. In On Nationality, for example, he sees a nation as a community of people that has “a good claim to be politically self-determining” (81), and argues that central components of liberal democracy, such as deliberative democracy, equality (social justice) and individual rights, are best realized in a national community. Professor Miller is especially instructive when he points out that “[t]he welfare state – and indeed, programmes to protect minority rights – have always been national projects, justified on the basis that members of a community must protect one another and guarantee one another equal respect” (On Nationality, 187). In National Responsibility and Global Justice, a landmark text that deals comprehensively with the subject of global justice, Professor Miller not only sees national responsibility as a type of collective responsibility but addresses a central issue of global justice, namely, how we should allocate remedial responsibilities to the world’s poor.

8

Tetsu Sakurai

In recent years more and more legal philosophers and political theorists in Japan have become interested in the themes of nationality and global justice, on which numerous books and articles have been written in Japanese. And since David Miller’s writings have doubtless been a significant influence, it is hardly surprising that his Kobe Lecture in Kyoto and the concomitant four seminars, particularly the one given in Tokyo, drew large audiences and led to vigorous discussions on his multifaceted theory. That is one of the main reasons why we decided to publish this volume. The editors would like to express their deepest gratitude to David Miller for his willingness to travel all the way to Japan to give the Kobe Lecture and to respond to all the questions and comments that followed it, and for his kind cooperation throughout this time and beyond. His visit took place barely four months after the Great East Japan Earthquake, at a time when some invited visitors were reluctant to travel to Japan, and we are grateful for the concern he showed, in various practical ways, for the people of our country. We would also like to thank all the contributors to our symposium for their stimulating comments and for submitting their manuscripts in good time. My warmest thanks also go to all those who helped to organize the 2011 Kobe Lecture and the seminars, especially Makoto Usami, my co-editor, who was in charge of the Tokyo seminar; Takahiro Doi, who was in charge of the Nagoya seminar; Takeshi Tsunoda, who was in charge of the Osaka seminar; Kosuke Nasu and Shin’ichiro Hama, who were responsible for the Kobe Lecture in Kyoto; and Teruhisa Se, who was in charge of the Fukuoka seminar, the first of such seminars ever to be held in the Kyushu district. Finally, the editors wish to express their heartfelt gratitude to Professor Tatsuo Inoue, President of JALP, and the executive board of JALP for their continuing support; to Dr. Annette Brockmöller, Managing Editor of ARSP, for backing this project and giving helpful advice; and, last but not least, to Dr. Graeme Tytler and his wife Sachiko for checking and editing nearly all the articles written by our Japanese colleagues.

MAKOTO USAMI, KYOTO (KYOTO UNIVERSITY) INTRODUCTION MILLER

ON

HUMAN RIGHTS

AND

GLOBAL JUSTICE

David Miller is an analytical but complex political thinker. On the one hand, he has long been well known for his particularistic ideas and arguments. In Social Justice (1976), he presented the pluralistic conception of social justice, arguing that what just distribution means depends on the type of relationship between the people involved. In On Nationality (1995) and Citizenship and National Identity (2000), he advanced the political form of nationalism, which contends that nationality is a significant factor in maintaining support for a welfare state. On the other hand, he has incorporated universalistic strands into his own theory. In National Responsibility and Global Justice (2007), for instance, he addresses what he calls weak cosmopolitanism, which holds those living in affluent societies responsible for meeting human rights of the world’s poor, while rejecting the claim of equality of resources or opportunities on a global scale. In the summer of 2011, Miller was invited to Japan to give the Tenth Kobe Lecture and to engage in discussion with legal and political philosophers in several seminars across the country. This was a valuable opportunity to figure out his sensible and subtle view on human rights, global justice, and nationality. In this introduction, I offer a brief overview of Miller’s lecture and the comments and short papers of his Japanese colleagues.

CONDITIONALITY

OF

HUMAN RIGHTS

In the Kobe Lecture held in Kyoto, Miller explores one possible feature of the idea of human rights, namely conditionality. It is widely thought that human rights are not earned or alienated because they are held by all human beings. However, this view does not fit our practice: we wage wars that seem to violate the right to life, and we have a criminal justice system that usurps the right to move, among others. He thus raises a question: How can we reconcile our manifestos that human rights are held unconditionally and our practice of fighting wars and punishing criminals? To answer this question, he begins by examining John Locke’s discussion on crime in the Second Treatise of Government. Locke insists that when one person violates another’s particular right, the violation demonstrates the offender’s willingness to abuse the victim’s rights more generally. This indicates further, it is argued, that the perpetrator declares war against humankind at large and removes herself from the human community, implying that she loses all of her rights in relationships with all other human beings. Nevertheless, Locke distinguishes between the rights that the perpetrator loses and those that she does not. It is also noted that punishment should be in proportion to the offence committed. In order to develop Locke’s suggestive but contradictory ideas into a coherent theory of human rights, Miller proposes an argument on the forfeiture of human

10

Makoto Usami

rights based on the idea of reciprocity. The assumption here is that one can claim human rights only if one is prepared to respect the same rights of others. Because one’s successful or attempted violation of the rights of another can be taken as indicating the forfeiture of one’s own rights, some of the offender’s human rights can be legitimately transgressed. Miller sets two forms of limit on the forfeiture of rights. The first is what might be called the content limit, which demands that the extent of the forfeit be proportionate to the extent of the violation. The second is what I term the temporal limit, which means that forfeiture can be brought to an end when we have good reason to think that the wrongdoer is ready to rejoin the community of rights holders in terms of reciprocity. Miller proceeds to argue that some human rights are unconditional in that they cannot be forfeited even if the rights holder displays disrespect for the rights of others by committing a rights violation. Unconditional rights fall into two categories. First, procedural rights concerning the criminal procedure are unconditional because we need to rely on these rights of the suspect to decide whether he has shown disrespect for others’ rights by committing a crime. The second category of unconditional rights includes certain substantive rights. The right to life, for instance, is unconditional because the rights holder who has breached another’s rights will lose in perpetuity the opportunity to rejoin the reciprocal community if we impose the death penalty on him. Miller also considers the right not to be tortured and the right to bodily integrity as unconditional rights, by appealing to the idea of a minimally decent life and that of human dignity. The juxtaposition of unconditional human rights and conditional ones, he suggests, is suitable for our practice of waging war and punishing criminals within legal limits. Miller’s paper is followed by three comments made from different perspectives. Tetsu Sakurai starts by pointing out remarkable similarities between Miller’s claim of the conditionality of human rights and David Hume’s conception of justice as an artificial virtue based on convention. He also finds parallelism between Henry Shue’s view that the idea of sovereignty is supported by reciprocity between states and Miller’s argument that many human rights are founded on reciprocity between individuals. Sakurai then puts forth the idea of society that he thinks underlies human rights, by suggesting that the emerging notion of international society might provide good reason to protect universal human rights. Katsu Tomisawa makes comments not merely on the paper presented by Miller in the lecture but also on his major publications. As to Miller’s works on nationality, he notes that the effects of nationality are limited in promoting reciprocity among citizens since many people may not have the sense of nationality in daily life. With regard to Miller’s current discussion on human rights, he suggests that while the principle of reciprocity might make the notion of inalienable human rights seem to be an object of idolatry, the unconditionality of some rights can protect their inalienability. Hirohide Takikawa examines three aspects of Miller’s argument on human rights forfeiture. He begins with the question of what kind of rights a person can forfeit, by wondering how the needs-based view of human rights that Miller presents elsewhere fits the reciprocity-based one. Next, he explores when rights can be forfeited and says that a suspect cannot abandon such rights as the freedom of movement before trial and conviction. In discussing the issue of whether the offender’s

11

Introduction

rights are forfeited in his relation with the victim or all others, Takikawa argues that these rights cannot be lost even after conviction, as the fact that a private penalty by a third party is always unjust illustrates. His comment includes addenda in which he responds to the revised version of Miller’s paper that is published in this issue.

GLOBAL JUSTICE

AND

NATIONAL RESPONSIBILITY

Several years before he gave the Kobe Lecture, Miller published a celebrated book, National Responsibility and Global Justice. In this book, he presents a nuanced position that maintains that people in affluent societies are, under certain conditions, obliged to fulfill the basic needs of those living in the developing world, while criticizing different versions of global egalitarianism. The Tokyo Seminar was devoted to discussion on this significant monograph, and four commentators replied to the author. Tatsuo Inoue raises a question: to what extent does Miller succeed in integrating his nationalist and globalist motifs into a coherent theory? His exploration of this question is threefold. First, he objects that Miller’s discussion on the justice gap – a gap between what the world’s poor can legitimately claim and what citizens in affluent countries are obliged to sacrifice to meet this claim – might allow these citizens to refuse to bear their burden except in such emergencies as natural disasters. Second, it is argued that Miller misunderstands and commits the fallacy of what Thomas Pogge terms explanatory nationalism. Third, Miller’s demand for the proof of negative impacts of past colonialism is criticized as illustrating the biased manipulation of the burden of proof. Despite his general agreement with Miller’s position, Ko Hasegawa emphasizes the subsidiary relationship between national responsibility and global justice in terms of liberal equality. For one thing, the active role of non-national actors implies, he argues, that the boundary of nationality is not a limit but a factual condition in realizing global justice. It is also noted that the idea of human rights requires international law to solve national problems. Hasegawa then points out that one’s self includes multiple identities – familial, associational, racial, and civil – which can have different responsibilities. The ideal of global justice might have connection not only with civil identity but also with other identities. Fumihiko Ishiyama seeks to show that Miller’s theory on national responsibility has three forms of limitation. The first is that Miller focuses on the responsibility of nation, assuming that each state acts on behalf of its nation as a whole. However, this assumption does not apply to cases in which the society in question includes two or more nations or in which the state is not democratic. Second, in the case of a nondemocratic society, those responsible for poverty can be ethnic groups, some individuals, or private companies based in other countries, whose liability Miller’s discussion does not cover. The third limitation Ishiyama finds is that Miller’s speculative discussion does not identify which nations are responsible for poverty in the real world. Yuko Kamishima’s concern is that those who are skeptical about global justice might read Miller’s theory of national responsibility as providing affluent nations with good reason for not taking positive action to reduce world poverty. After offer-

12

Makoto Usami

ing an overview of his conception of global justice, she points out that by limiting the cases in which outsiders of a poor nation bear a duty of justice, Miller’s view might leave some of those whose human rights are violated in an unassisted situation. To remedy this and other problems that she finds in his discussion, Kamishima suggests that Miller consolidate his account of human rights by incorporating a Nussbaum-like version of the capabilities approach into it. CAPITALISM, CULTURE,

AND

COSMOPOLITANISM

In seminars held in three other cities – Nagoya, Osaka, and Fukuoka – a number of legal and political philosophers read short papers. These papers, four of which are selected and included in this volume, discuss issues surrounding Miller’s theory on human rights, collective responsibility, and cosmopolitanism as developed in National Responsibility and Global Justice and related works. Yasuhiko Itoh focuses on what he sees as lying behind poverty in less developed countries: global capitalism. He maintains that it is difficult to identify those responsible for world poverty emerging in the process of cumulative market transactions on a global scale because most producers, investors, and consumers act within legal rules. It is also noted that in the global market, the risk of deprivation and poverty threatens not merely those living in developing countries but also citizens in rich societies. To meet these difficulties of global capitalism, Itoh claims that the ideal of global justice requires the responsibility of reforming international institutions, not the remedial responsibility advocated by Miller. Teruhisa Se explores the conditions necessary for ensuring the universality of the idea of human rights, which Miller approves, and for giving adequate consideration to its sensitivity to diverse cultural contexts in different societies. He reads Miller as suggesting that people in every culture should engage in the reflective search for better conceptions of basic needs. To elaborate this suggestion, Se argues that it is crucial for intellectuals in each society to formulate their local conceptions of human needs in their own language, by taking as an example the Japanese understanding of the self, which is very different from the Western one. He proceeds to underline the importance of nationalism, with reference to the history of prewar modernization in Japan, and to suggest that Western liberal thinkers, including Miller, should pay more attention to national cultures in non-Western societies. Seiko Urayama holds that what weak cosmopolitanism denotes is susceptible to three interpretations. First, this form of cosmopolitanism might be weak in that it argues against global egalitarianism and demands that only the basic needs of the global poor should be met. Second, weak cosmopolitanism might mean objection to assigning one cause of global poverty to the defects of the current international order. Third, Miller’s view may be weak because it contains the claim of a justice gap, which means that peoples in rich societies can justifiably refuse to fulfill the claims of the world’s poor. After examining the cogency of three possible meanings of weak cosmopolitanism in turn, Urayama concludes that this position is less stable than it appears. The aim of Chikako Endo’s paper is to show that citizenship provides more adequate grounds for collective responsibility than nationality does. To begin with, she offers her conception of citizenship as a legal status of membership in a demo-

Introduction

13

cratic state governed by norms of equality, reciprocity, and fairness. Next, it is argued that while Miller’s like-minded group model plays a role in ascribing causal responsibility to a nation, the formal procedure of voting and the public culture of equality provide reasons to hold individual members of the nation responsible for the collective outcome. She then observes that Miller’s cooperative practice model is plausible only when benefits and burdens of cooperation are distributed fairly among citizens. These comments and short papers are followed by Miller’s lengthy rejoinder, in which he presents three foundational theses that underlie National Responsibility and Global Justice and his lecture. The first concerns the contextual character of principles of distributive justice, an implication of which is that when we ask about what global justice means, we need to look at the relationships between those living in one society and those in another, which are very different from domestic relationships. The second thesis emphasizes the role of reciprocity in practical reasoning, which has two aspects. First, the way in which one person is morally obliged to behave toward another depends on how the latter has treated, or will treat, the former. Second, when a group of persons bears some responsibility, what one member is required to do depends on what others do, and it does not go beyond her fair share of the collective task. The last thesis lying behind Miller’s arguments addresses the significance of assigning responsibilities to correct injustice. When we know that people are suffering from injustices, the thesis demands us to identify who has the primary responsibility to remedy the injustices. Based on the three basic theses, Miller responds in depth to questions and criticisms raised by his colleagues. The constructive exchange between Miller and his commentators and discussants, I hope, sheds new light on various aspects of his multifaceted theory and on such important concepts in political philosophy as human rights, global justice, nationality, and responsibility. Makoto Usami Graduate School of Global Environmental Studies Kyoto University Yoshida-Honmachi, Sakyo-ku, Kyoto 606-8501, Japan

PART 1 CONDITIONALITY

OF

HUMAN RIGHTS

DAVID MILLER, NUFFIELD COLLEGE, OXFORD ARE HUMAN RIGHTS CONDITIONAL?1 INTRODUCTION We usually think of human rights as attaching unconditionally to all human beings. Bracketing off, as I shall do throughout this article, the issue of children’s rights (which raises the question of the conditions under which a person can claim the full set of human rights), we see human rights as claims that do not have to be earned. You have them simply by virtue of your humanity without having to do anything special to be awarded them. Different theories are put forward to explain which feature or features of human beings ground the ascription to them of human rights, but the relevant features are supposed to be universally shared. Human rights are also often said to be inalienable: they are not things that a person can lose by virtue of the way she acts.2 These two thoughts taken together amount to the claim that human rights are unconditional: they do not have to be earned, and they cannot be alienated. That is how we regard human rights in theory, but our practice seems to be different. We act in ways that deny people at least some of their human rights, and we claim to be justified in doing so. In particular we wage wars in which people are killed and wounded, seemingly violating their rights to life and bodily integrity; and we punish people by imprisoning them, seemingly violating their right to freedom of movement as well as a whole host of others. A few might say that, for this very reason, such practices cannot be justified. But much more commonly it is believed that under the right circumstances warfare can be just, and likewise custodial punishment, and so on the face of it we appear to believe that human rights are not unconditional after all. Either, it seems, they can be lost entirely, or at least there are circumstances in which they can easily be overridden. This then generates the problem that my article addresses: how can we announce in our manifestos that human rights are held unconditionally by all human beings, while in our everyday practice – fighting wars or punishing criminals – we appear to violate them without being troubled by the fact.3 Is there some way to reconcile these two positions? In particu1

2 3

This essay was originally written to be delivered as the Kobe Lecture, Doshisha University, Kyoto, Japan, 9 July 2011. Earlier versions were also presented to the Scandinavian Conference on Normative Political Philosophy/Theory, Vejle Fjord, Denmark, 30 May-3 June 2011, the Nuffield Political Theory Workshop, 14 November 2011, the MANCEPT seminar, Manchester University, 17 November 2011, the CSSJ seminar, Oxford University, 16 January 2012, and the PPEL Kick-Off Conference, University of Richmond, 27–28 January 2012. I am very grateful to the participants in all of these events for their comments and questions, and especially to Richard Dagger, Thomas Douglas, Francois Hudon, Cecile Fabre, Luara Ferracioli, Joanna Firth, Jeffrey Howard, Tetsu Sakurai, Hirohide Takiwaka, Katsu Tomisawa and Andrew Williams for written commentaries which have been invaluable in helping me to revise it. I leave aside here the question of voluntary waivers of human rights, such as occur, in the short term, when a person agrees to have invasive surgery. My interest is in whether human rights can be lost other than by the consent of the right-holder. Later on in the article I shall discuss a number of possible ways in which theory and practice might be reconciled, but let me respond here to one challenge to my initial formulation of the

18

David Miller

lar, do we need to distinguish between human rights that really are unconditional – cannot be lost no matter what their bearer does – and others that may be forfeited by acting in certain ways? My interest in this question has been provoked by two contemporary political issues, which led me to reconsider a celebrated philosophical text, John Locke’s Second Treatise of Government. The first issue is somewhat parochial and involves the clash (still unresolved) between the British government and the European Court of Human Rights over the political rights of prisoners. Historically, following the 1870 Forfeiture Act, British law has denied all convicted prisoners the right to vote. This blanket ban has been challenged by prison inmates appealing to the European Court, and the Court has insisted that on human rights grounds the ban must be lifted. The Court, however, has not said that every prisoner must have the right to vote. Its complaint is about the indiscriminate character of existing British law; it would be satisfied if removal of political rights became contingent on a judicial investigation of individual cases. In other words both sides appear to accept the principle of forfeiture – meaning here that someone who commits a crime of sufficient gravity thereby forfeits his or her human right to vote – while disagreeing about whether all crimes that receive custodial sentences cross that threshold regardless of the particular circumstances of the perpetrator. Some liberal critics, however, deny this: their view is that criminals should lose only such rights as are an unavoidable corollary of their imprisonment. All other human rights, including political rights, are held unconditionally. But they too, it seems, must accept the principle of forfeiture in the case of the rights that inevitably are lost when a person is imprisoned. The underlying premises according to which this whole argument is being conducted therefore remain very unclear. How can we decide which human rights may be forfeited, and under what circumstances? A more momentous political issue concerns how liberal societies may respond to those engaged in terrorist activities that threaten their citizens. May they, for example, pre-emptively kill those who have been identified as suicide bombers? May they intern terrorist suspects without trial? May they torture known terrorists to gain information about forthcoming attacks? Responses such as these put some of the most fundamental human rights of the suspected terrorists into question. But one often hears it said that by engaging in a campaign of terror, these individuals have problem. This holds that human rights are always understood to have exceptions built into them, allowing for loss of rights in certain circumstances. In other words, when human rights are described as ‘inalienable’ this means only that they cannot be alienated in certain ways, for instance by signing contracts of servitude. Support for this challenge might come from Article 29 of the Universal Declaration of Human Rights which speaks, rather vaguely, about the ‘limitations’ to which everyone is subject in exercising their rights, on grounds of public order, etc. More concretely, the International Covenant on Civil and Political Rights goes into some detail about which practices of punishment are to be allowed and which are not (including even the death penalty in some cases), thereby implying that the loss of rights entailed by these practices is permissible. My reply is that these official documents give no explanation as to why such exceptions should be written in. Philosophical defences of human rights spend much time laying out the grounds of these rights, but typically fail to address the question of when and on what basis restricting them is justifiable. So the issue that arises is whether current state practice, as reflected in the official documents, can be given a coherent rationale. In order to attempt this, we need to tackle the issue of rights conditionality directly.

Are Human Rights Conditional?

19

lost the protection of such rights. If the measures in question are indeed necessary to protect innocent people, it is not wrong to implement them, so it is claimed. LOCKE

ON RIGHTS-FORFEITURE AND PUNISHMENT

These were the issues that led me to revisit certain passages in Locke’s Second Treatise in which he appears to assert quite boldly that human – or as he would say, natural – rights are indeed conditional. Locke is, of course, widely credited with inspiring much of the later development of human rights theory. But although his influence on contemporary liberalism is undeniable, it is important also to recognize that his liberalism was developed as a fighting doctrine. Locke understood that liberal societies might have to defend themselves against would-be oppressors in their midst, and that gave his liberalism a harder edge than it usually has today. In 1689 (or thereabouts) one could not assume that liberal institutions were so firmly entrenched that liberal tolerance could be extended to those who sought to destroy them. This helps, I believe, to explain the conditionality of Locke’s theory of rights, which I shall now try to display and unravel. The relevant passages in the Second Treatise are those in which Locke is explaining how we may respond to those who have harmed us, or who approach us threatening harm. This category of persons may include enemies in war, common thieves, and political tyrants. In all these cases, Locke claims, someone who by virtue of his aggressive conduct ceases to acknowledge ‘The Rule of Reason’ loses his status as a rights-bearing human being, and may be treated in the same way as a dangerous animal. Here, for example, is Locke explaining how an aggressor forfeits his right to life: For having quitted Reason, which God hath given to be the Rule betwixt Man and Man, and the common bond whereby humane kind is united into one fellowship and societie; and having renounced the way of peace, which that teaches, and made use of the Force of War to compasse his unjust ends upon an other, where he has no right, and so revolting from his own kind to that of Beasts by making Force which is theirs, to be his rule of right, he renders himself liable to be destroyed by the injur’d person and the rest of mankind, that will joyn with him in the execution of Justice, as any other wild beast, or noxious brute with whom Mankind can have neither Society nor Security.4

This idea, that the aggressor, by his actions, leaves human society and joins the beasts, is repeated in several places in the book – ‘may be destroyed as a Lyon or a Tyger,’5 ‘for the same Reason, that he may kill a Wolf or a Lyon,’6 ‘as any savage ravenous beast, that is dangerous to his being,’7 and so forth. This may give the impression that Locke holds what we might call a strong forfeiture view of rights, namely that once someone embarks on the unjust use of force against another, he immediately loses all of his rights, since this is what the wild beast analogy would suggest. (Locke, we can assume, would not have thought of animals, let alone savage ones,

4 5 6 7

John Locke, Two Treatises of Government, 1988, 383. Locke (note 4), 274 Locke (note 4), 279 Locke (note 4), 389

20

David Miller

as having any rights.) And indeed there are places in which Locke appears to hold a strong forfeiture view, for instance: Whosoever uses force without Right, as everyone does in Society, who does it without Law, puts himself into a state of War with those, against whom he so uses it, and in that state all former Ties are cancelled, all other Rights cease, and every one has a Right to defend himself and to resist the Aggressor.8

But this – ‘all other Rights cease’ – is not Locke’s considered view, for in other places he is careful to distinguish between the rights that the aggressor loses and those that he does not. When an armed robber threatens me on the highway, I am entitled to kill him, but I am not entitled, if I can overpower him, to steal his possessions and let him go.9 The robber forfeits his right to life through his unjust use of force, but not his right to property. So now it begins to look as though what Locke is giving us is not a theory about the wholesale forfeiture of rights, as suggested by the lion and tiger passages, but a theory of self-defence. The attacker loses his right to life because I have the right to defend myself against attack, killing him in the process if necessary. But other rights that are irrelevant to the threat he poses are retained. This also, however, turns out to be incorrect, for two reasons at least. One is that Locke clearly intends his forfeiture story to justify punishment after the event as well as self-defence at the time of the aggression. As is well known, Locke defends the natural right to punish, which he separates from the right to demand reparation for the injury that the aggressor has inflicted.10 The aim of punishment is to induce the evil-doer to repent what he has done, and to deter others from doing similar deeds. This cannot be understood as a form of individual self-defence on the part of the victim; punishment will usually be inflicted at a time when the aggressor no longer poses an immediate threat to anyone. And this connects to the second reason, which is that Locke sees aggression as an offence against human kind generally, not just against the person who is its direct object. This is why others besides the injured person may also punish the wrongdoer – the latter loses rights against people at large, not only against the direct object of his wrongdoing. The details of Locke’s theory of punishment are not important here.11 What matters to us is understanding Locke’s account of how natural rights are lost. It is clear that he sees these rights as attaching to people by virtue of their capacity to reason. In the background stands Locke’s claim that anyone in whom this capacity has not been impaired ‘through defects that happen out of the ordinary course of Nature’12 is able to grasp the laws that God has laid down for the guidance of mankind.13 In broad outline these laws tell us that ‘being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions.’14 The laws 8 9 10 11 12 13

14

Locke (note 4), 419 Locke (note 4), 390 Locke (note 4), chapter 2 There is a good discussion in A. J. Simmons, The Lockean Theory of Rights, 1992, chapter 3. Locke (note 4), 307 The rider about defects is intended to apply to ‘Lunaticks’ and ‘Ideots’ (Locke, 308). For a full discussion of Locke’s claim that knowledge of natural law is accessible to everyone else, see Jeremy Waldron, God, Locke, and Equality: Christian Foundations in Locke’s Political Thought, 2007, chapter 4 Locke (note 4), 271

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confer rights that protect these basic goods. But they do so on a reciprocal basis: a necessary condition for holding rights is that one should be guided by natural law (or what Locke as we have seen sometimes calls ‘The Rule of Reason’) when one interacts with other rightholders. Clearly an aggressor – somebody who attempts to kill or injure another, or enslave them, or rob them – breaches the natural law when he acts in this way.15 But it is not so clear why a single breach should change the status of the aggressor in such a way that he is no longer a rightholder. Locke, however, presents such a person as having wholly repudiated the law of nature: the offender, he says, ‘declares himself to live by another Rule, than that of reason and common Equity.’16 Or of a murderer, he says that ‘having renounced Reason, the common Rule and Measure, God hath given to Mankind, [he] hath by the unjust Violence and Slaughter he hath committed upon one, declared War against all Mankind.’17 This thought is developed in Locke’s short chapter on the state of war, where it quickly becomes clear that he is describing a phenomenon that is much broader than war as we would normally understand it. It encompasses any situation in which one person has declared ‘a sedate setled Design, upon another Mans Life’ – and this in turn is stretched to include attempts to enslave or rob another, on the grounds that if someone is prepared to do these things, it is reasonable to assume that he would be willing to take the other’s life as well if necessary. Locke’s argument about the loss of rights, then, proceeds by a series of inflationary steps. We begin with an act that violates another’s rights – an attempted robbery, say. Locke then argues that a person who is willing to act in this way demonstrates that he is also willing to violate the victim’s rights more generally, to the point of killing him. This is then treated as equivalent to a declaration that the aggressor does not recognize ‘the Common Law of Reason’ as applying to himself. And this in turn is treated as a declaration of war upon mankind at large, not merely on his particular victim – so even the common robber removes himself from the human community and places himself in the company of those ‘noxious Creatures’ the wolf and the lion. Once the argument is laid out in this way, two difficulties immediately appear. The first is that each of the individual steps seems unjustified. We have no reason to regard every robbery as a potential homicide, for example. Nor does breaking a rule on a particular occasion amount to an announcement that one does not recognize the rule’s authority at all. The second is that the argument appears to entail that the criminal forfeits all of his rights, whereas Locke himself, when he discusses the right to punish, makes it clear that punishment must be proportionate to the offence, and no greater than what is necessary to achieve the two justifying aims of repentance and deterrence. Why would punishment that oversteps these limits be unjust unless the person on whom it is inflicted retains some of his rights?18 So it appears that 15 16 17 18

Locke assumes that such aggressors are morally responsible for their actions – in contrast to some more recent discussions, he does not consider cases where the aggressor is deranged, acts under compulsion, etc. Locke (note 4), 272 Locke (note 4), 274 I ask this question rhetorically in an effort to smoke out the most plausible reading of Locke’s position, but I concede that one could hold the view that the convicted criminal loses all of his

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Locke’s somewhat striking account of the conditionality of human rights is not only harsh in its implications but also inconsistent with his more considered views about property rights and punishment.19 THREE

ATTEMPTS TO RECONCILE THE THEORY AND PRACTICE OF HUMAN RIGHTS

Can Locke’s theory of rights be rescued? Why might we want to rescue it? What first drew me to Locke’s discussion was a sense that there was something right about the idea that human rights are dependent upon reciprocity: our possessing them is conditional on our willingness to respect them in others.20 It then seems to follow, as Locke suggests, that someone who knowingly violates the rights of others without good reason forfeits his claim to have his own rights respected. But as we shall see, many have thought that the idea of forfeiture collapses under closer scrutiny. So before we start down that track, let us explore some other ways in which we might try to reconcile the idea of inviolable human rights with practices such as judicial incarceration. One answer would be to say that when we engage in such practices, we simply allow human rights to be overridden by wider social goals – in the case of imprisonment, for example, by the need for a mechanism that protects society from people who pose a danger to its members and/or that deters potential threats from acting on their intentions.21 There is no question of prisoners losing their human rights, on this view; the rights are simply set aside for the greater good of society (a similar argument might be made in the case of those who are killed in the course of justified military operations). But the objection to this answer is that it appears to miss one of the basic points of attributing rights to people in the first place, which is to create for each individual a protected zone which states cannot enter in their pursuit of other social values. Human rights are supposed to be a serious matter: they are supposed to constrain what governments may legitimately do, perhaps also to provide grounds for international action against states that violate them on a large scale. But if it were permissible to override prisoners’ rights (or the rights of those killed or injured in the course of armed conflict) merely by pointing to the overall good

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rights, while it is unjust for independent reasons to punish him more severely than he deserves. Is there any evidence, though, that this was Locke’s view? Cf. Waldron (note 13), 143–4 There are further complications introduced by Locke’s endorsement of a ruler’s power to pardon offenders, discussed in Waldron (note 13), ch. 5. Locke of course gives this idea a religious interpretation: in violating rights we violate a rule of reason that God has laid down for the governance of mankind. But it readily assumes a secular form. As Simmons puts it, ‘protection under the rules is contingent on our obeying them: any rights the rules may define are guaranteed only to those who refrain from violating them … Surely we cannot reasonably complain of being deprived of privileges under rules we refuse to live by.’ Simmons (note 11), 153 A variant on this answer is provided by James Griffin, who argues that when criminals receive fair punishment, this is an example of human rights being overridden by a concern for justice, here in the form of (negative) desert. For Griffin, human rights and justice are separate values, which may conflict and need to be traded-off against each other. See James Griffin, On Human Rights, 2008, 65–6.

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consequences of doing so, that purpose would be lost. We would not be ‘taking rights seriously.’22 A second possible approach is to say that human rights have scope limitations built into them, and that when we punish criminals we are simply enforcing those limitations. The premise that is appealed to here is clearly correct. When we determine the scope of a right such as the right to freedom of movement, we must do so in such a way that the equal rights of everyone else can be simultaneously recognized. Thus traffic laws and crowd control measures do not in normal cases violate the human right to freedom of movement. What they do, if well designed, is precisely to limit my right to move in order to make sure that you can enjoy a right of free movement that is of equal extent to mine. More generally, the scope of any one human right must be limited so that its exercise does not impinge on the (appropriately limited) scope of the others.23 Although the premise is correct, it does not lead to the desired conclusion. For the practices we are concerned about do far more than enforce the proper limits of human rights. When a person is sent to prison, his freedom of movement is restricted in a much more radical way than when traffic laws (or the riot police) prevent him from exercising that right to the detriment of others’ equal rights. Although it is true that while he is locked up, he has little or no opportunity to violate other people’s human rights, his own loss of rights is likely to be far greater than is strictly necessary to achieve that end. Punishment as normally understood aims to do more than prevent those who have offended from re-offending.24 It is that greater loss of rights that needs to be justified, and that cannot be done simply by pointing to the limitations of scope that are inherent in any coherent doctrine of human rights. It might be said in reply here that the prisoner’s loss of rights, by virtue of its deterrent effect once made public, may contribute to the protection of human rights overall – or, in a variant of this argument, that if our aim is to respect human rights equally, then we are justified in overriding the prisoner’s rights when this serves to ensure that the rights of others are better protected. But this approach makes sense only if one is willing to adopt a form of rights-consequentialism that 22

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Here I invoke Ronald Dworkin’s celebrated essay with that title in Ronald Dworkin, Taking Rights Seriously, 1978. I do not mean that the account we give of human rights must be such that it is never justifiable to violate them. We can readily imagine catastrophic situations in which we would have reason to override even the most basic of rights. But these situations would have to be exceptional, whereas the position discussed in the paragraph above envisages human rights being overridden on a day-to-day basis under normal conditions, when criminals are imprisoned or soldiers killed or wounded. It debases the currency of human rights if we allow them to be set aside so easily. A good example used by James Nickel is the way that the right of free speech must be limited in order to protect the right to a fair trial: one is not permitted in court to inform the jury about the defendant’s previous criminal record. See James Nickel, Making Sense of Human Rights, 2007, 42–3. For further reflection on how the scope limits of human rights are to be established, see David Miller, Grounding Human Rights, Critical Review of International Social and Political Philosophy 15 (2012), 407–27. As noted earlier, some critics may respond to the problem I am addressing by arguing that punishment as currently practised, even in liberal societies, is fundamentally unjust precisely because it removes human rights when this is not unavoidable if others’ rights are to be protected. My aim is to see whether human rights theory, properly understood, does allow for practices such as punishment in roughly their present form.

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allows rights to be deliberately violated where this can be shown to have good effects on rights protection elsewhere. To be clear, the objection is not to allowing considerations of deterrence to play a guiding role when we are considering the extent of punishment that may justifiably be inflicted on offenders of a given description. The problem, rather, is the assumption that once we have shown that punishment has rights-protecting consequences, we have also shown why it is legitimate to take rights away from the particular individuals who are punished. It is not necessary to impose severe restrictions on the prisoner’s freedom of movement to protect the rights of others in the way that it is necessary to limit my freedom to drive a car by enforcing the rules of the road if your equivalent freedom is to be preserved. Where punishment is justified by its function of deterrence, we are using those punished as a means to protect others, and we need an independent argument, such as the idea of rights-forfeiture provides, to explain why this is permissible. A third approach involves drawing the now-familiar distinction between infringing rights and violating them.25 Here the underlying thought is that it is sometimes necessary to breach one right in order to protect a right of greater importance. When this happens, the former right is not violated, but merely infringed; it is not cancelled, but put into abeyance and this may be justifiable. The cases that are used to illustrate this distinction often involve life and death situations in which if A is to save her life, she must infringe some lesser right of B’s, by, for instance, injuring B or taking something he rightfully owns. But the idea may be extended to cases of self-defence in which one person kills another to save his own life by introducing the idea that rights may have different degrees of stringency – so when self-defence is justified, it is on the grounds that the defender’s right to life is more stringent than the corresponding right of the person who poses a threat. But this approach also runs into difficulties if we try to apply it to the case of imprisonment. If we are to say that prisoners’ human rights are not violated but merely infringed when they are locked up, we will have to show that the incarceration is a necessary means to protect somebody else’s more stringent right. This is going to be difficult other than in the case of exceptionally violent convicts whose release from prison might pose an immediate threat to other people’s rights to life and bodily security. With most criminals, even if we think that there would be some chance of their reoffending if they were released, the danger they impose is not of the direct kind needed to support the idea that their rights are merely being infringed when they are held in gaol. A similar problem arises if we try to use the infringement/violation distinction to explain why it is permissible to kill enemy soldiers in the course of a just war. This approach might work in the special case where the enemy is attacking, and the soldiers who are being attacked kill in self-defence, their rights being treated as more stringent by virtue of their status as ‘just warriors.’26 But it cannot show why it is permissible to kill the enemy when you are attacking, 25

26

This was introduced in J. J. Thomson, Self-Defense and Rights, in: Rights, Restitution, and Risk: Essays in Moral Theory, 1986 and further popularised in Joel Feinberg, Voluntary Euthanasia and the Inalienable Right to Life, in: Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy, 1980. I remain agnostic as to whether this is the best way to explain the legitimacy of killing in war, as opposed to approaches which assume the moral equality of soldiers. Nor am I sure whether the rights-forfeiture view that I defend in this article can do all of the explanatory work that is

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even with justice on your side, since in that case the immediate conflict of rights is of your own making, and it is not necessary to kill enemy soldiers to protect your rights; you could do that by remaining in a defensive posture. CLARIFYING

THE IDEA OF FORFEITURE

It begins to look, therefore, that the practices we are considering cannot be justified unless we allow that the people whose rights are taken away have acted in such a way as to deprive them of what would otherwise be their entitlements – in other words, we will need some version of the forfeiture view if we are going to give a full normative account of justified imprisonment and other responses to rights-violating behaviour (such as disabling terrorists). What are the difficulties to be surmounted? We have to explain in what sense rule-breaking agents forfeit their rights (since it is presumably not true in standard cases that they intend to forfeit them); and we also have to explain which rights they forfeit and which they do not. We want to avoid the stark Lockean view that criminals – robbers as well as murderers – remove themselves from human society and join the wild beasts, losing all of their human rights in the process. But then we have to explain how, by acting in a certain way, one can lose certain rights but still retain others. How, then, is the forfeiture view to be understood? The underlying idea is that a person enjoys the protection of human rights so long as she acts in ways that respect the human rights of others. When she fails to act in such ways, she loses that protection; in other words, people at large, including those she has victimized, are no longer under the duties they would otherwise be under to respect her rights. This does not mean, let us notice at once, that she loses any claim whatsoever to the substance of those rights. There is always a logical gap between having a right to something – food, say – and having a claim to that same thing, since claims can be advanced on other grounds. If someone forfeits his right to food that means that other people are released from their (right-based) duty to ensure that he has food. It does not mean that they have no reason at all to feed him; it certainly does not mean that they have a reason (or a duty) to deprive him of food. So the first point to note is that forfeiting rights is not tantamount to abandoning all moral claims against others in the relevant domain. There are other false steps that need to be avoided here. One is to understand ‘forfeiture’ in such a way that it becomes merely a matter of convention.27 When we talk about ‘forfeit’ in the context of games, for example, what we mean is that a player who breaks one of the rules has to surrender something of his (or perhaps has to perform some ridiculous task in front of the assembled company to redeem his ‘forfeit’). Here what is forfeited is precisely what the rules of the game lay down as

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needed. It may do a better job of explaining permissible responses to acts of terrorism than of killing in war itself. For an account of forfeiture that moves in this direction, see C. Morris, Punishment and Loss of Moral Standing, Canadian Journal of Philosophy 21 (1991), 53–80. Morris begins from the premise that ‘justice is to be understood as a mutually beneficial convention’ (66) and argues that the conventions of justice have built-in penalties which apply to those who lose moral standing by disregarding them.

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the appropriate penalty for misconduct. And this is obviously just a matter of convention. So critics have charged that in criminal law, the idea of forfeiture can play no independent justifying role, because what a person forfeits by his crime is simply whatever prevailing law lays down as the appropriate penalty: if the law says that murderers shall hang, then what a murderer forfeits is his right to life; if instead the penalty is life imprisonment, then the killer forfeits his right to freedom. We cannot then appeal to the idea of forfeiture to explain why one or other of these punishments is the appropriate response to what the murderer has done.28 So this way of understanding forfeiture is not going to help us if our aim is to make sense of the idea that a person can, by acting in a certain way, forfeit (some of) her human rights, where how rights are lost and which rights are lost is precisely what we are trying to establish. Another false step is to suppose that what is forfeited is the exact equivalent of the rights that the offender has violated.29 This makes forfeiture equivalent to the lex talionis: an eye for an eye, a tooth for a tooth. But this confuses the idea of forfeiture, which as I have indicated means losing the protection of certain rights, with the very different idea of retribution. A simple retributive view says that, as a matter of justice, whatever an aggressor has done, the same should be done to him in return (or if that is not possible, then the nearest equivalent).30 This is one form of reciprocity, certainly, but it is not the form that I intended when explaining why it could be used to support the idea that human rights are conditional. As indicated earlier, when rights are forfeited, others are released from duties they would otherwise have been under, but this by itself does not give them even a reason, let alone a duty, to penalise the forfeiter. Forfeiting rights may entail that certain forms of punishment are permissible, but it does not entail that they are required, or that justice is served by imposing them.31 So how, positively, should we understand the idea of forfeiture if we are going to treat human rights as in a certain sense conditional? The underlying idea is that we can only claim human rights if we are prepared to recognize others as holders of the same rights. So forfeiting must mean acting in a way that clearly indicates that we do not recognize such rights – that we do not see others’ rights as imposing binding obligations on us. This was Locke’s thought when he argued that ‘in transgress28 29 30 31

For criticism of forfeiture along these lines, see W. Quinn, The Right to Threaten and the Right to Punish, Philosophy and Public Affairs 14 (1985), 332–4. Tim Scanlon also understands forfeiture as institution-relative in T. M. Scanlon, What We Owe to Each Other, 1998, 265–6. For the suggestion that this is how forfeiture is to be understood, see A. Goldman, The Paradox of Punishment, Philosophy and Public Affairs 9 (1979), 44–6. I don’t mean to imply that all retributive theories of punishment must take this simple form. Most of the discussion of the idea of rights forfeiture has taken place in the context of debates about the justification of punishment, and although this is understandable, it may also be unfortunate, because many of the critics focus on why rights-forfeiture is implausible as an answer to the general question ‘For what reason, and with what penalties, may criminals be punished?’ For example, David Boonin’s forensic discussion is aimed at what he calls ‘the forfeiture claim’, which he takes to be the claim that ‘if P violates Q’s right to X, then P forfeits P’s own right to X (or perhaps instead forfeits some equivalent right or set of rights).’ See D. Boonin, The Problem of Punishment, 2008, 105. It is then fairly easy to raise objections that apply only to forfeiture as understood in this particular way, namely as explaining and justifying the particular form and amount of punishment that P should undergo.

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ing the Law of Nature, the Offender declares himself to live by another Rule, than that of reason and common Equity’32 but his mistake was to assume that any breach of the law amounted to such a declaration. For, supposing as Locke did that the law of nature covered property rights, this would imply that the action of robbing an empty house, say, implied a wholesale disregard for property rights. But the burglar who did this might on very many other occasions be a respecter of such rights: so a single act cannot constitute the kind of declaration that Locke intends. And when he is trying to justify wholesale forfeiture, Locke uses examples in which one person poses an ongoing threat to another: he talks, as we have seen, about someone ‘declaring by Word or Action, not a passionate and hasty, but a sedate setled Design, upon another Mans Life’ or as having ‘discovered an Enmity to his [the victim’s] being.’33 These phrases convey the picture of one person acting towards another on the basis of a conviction that the second person’s life is of no consequence, that he or she lacks the protection of natural rights. Can we get clearer about when it is reasonable to treat someone’s behaviour as implying this non-recognition of the rights of others? Locke refers to both words and actions, but words in themselves seem to count only when they signal a real and plausible intention to carry out what is being threatened. Merely saying that, given the chance, I would shoot Silvio Berlusconi or Kim Jong-un does not count if this is just idle talk. On the other hand, it would be too narrow to understand non-recognition as occurring only when someone poses an immediate threat to a second person’s right to life, or to some other right. If Smith has various opportunities to attack Jones, and whenever one of these opportunities arises he does so, it would be wrong to say that his failure to recognize Jones’ rights occurs only in those moments when he is actively attacking. His ‘Enmity to [Jones’] being’ is ongoing. Here the forfeiture approach to loss of rights parts company with one based on the idea of self-defence, which runs into difficulties when threats cease to be imminent because, for instance, the attacking party is disabled or blocked in some way.34 If (as the selfdefence approach suggests) the attacker’s rights can be set aside because they are outweighed by the more stringent rights of the person being attacked, then it appears that the former’s rights switch on and off as the threat he poses wanes and waxes. If, by contrast, we say that rights are forfeited by virtue of a failure reciprocally to recognize the other’s rights, then we can use his behaviour as a guide to the attacker’s settled disposition to violate his victim’s rights. Posing an immediate threat at a particular moment is no longer a necessary condition for forfeiture. Under what conditions can we say that someone’s actions fail to recognize the rights of others? Deliberately and successfully violating them is the most clear-cut case, but failed attempts may count as well, and so may taking active steps to put oneself in a position where a rights violation will occur. Thus a suicide bomber who arms himself and begins walking towards a crowded market may be disabled, perhaps even killed, on these grounds since his intention is so clearly conveyed through his actions. We rightly hesitate to remove rights from people on the basis of expressed intentions alone, because we owe them the opportunity to reflect further 32 33 34

Locke (note 4), 272 Locke (note 4), 278–9 The various possibilities here are explored at some length in Thomson (note 25).

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and hold back when the moment comes to turn their thoughts into deeds. But where the intention is acted upon, and it is clear that a deliberate rights violation is about to occur, or would have occurred had not some intervening factor prevented it, then we are justified in interpreting the person’s behaviour as a failure of reciprocity, as a result of which his own human rights may become liable to forfeit. On the other side of the coin, in order to enjoy the status of a rights-recognizing individual, one need not hold any particular beliefs about the reasons why one should act in ways that respect the rights of others. A person’s moral code may be duty-based. She may refrain from murder or theft because she believes that God has commanded her to do this, not because she believes that others have the corresponding rights. Or she may be a utilitarian who adheres to a rule with the same practical effect. Yet again she might be someone entirely lacking in moral commitments, but who is fearful of what will happen to her if she violates other people’s rights. In all these cases what matters is that the person in question does act so as to respect the rights of others, even though she does not do so because it shows respect. So she does not forfeit any rights. We may be especially concerned about the last of the three possibilities I have referred to because it is unstable. If this person discovers the ring of Gyges, she is likely to begin violating rights. So we have reason to try to educate her into upholding the principle of reciprocity, with regard to rights in particular. But we cannot treat her now in the way in which we are justified in treating someone who actually proceeds to violate other people’s rights. Actions may fail to recognize other’s rights to a greater or lesser extent. The right that is breached may be more or less important, the breach may happen on only one occasion, or it may be repeated, and the action itself may show disrespect just for a particular person or for a whole class of people. Our response should vary accordingly. Consider different instances in which people kill. Most often one person kills a specific other, in anger, out of revenge, or for instrumental reasons. Occasionally a person will go on a rampage and kill indiscriminately. In between, we have examples where someone tries to kill people belonging to a certain general category – for example a serial killer who murders prostitutes, or a suicide bomber who aims to kill people she regards as infidels. It may seem that only in the second and third cases do the person’s actions express wholesale disregard for the rights of others. In the first case, the killer may offer a justification or excuse for what he has done that relates to the individual person killed, trying thereby to deflect the implication that he has no concern for human rights in general. We need not take such a justification or excuse at face value. But nor should we exclude the possibility that such an aggressor does indeed reciprocally recognize the rights of others, and will continue to do so in future, even though in the particular case he has violated reciprocity in the most terrible way. And this possibility should guide us when we think about the degree to which his rights have been forfeited. As we saw when discussing Locke, it does not seem plausible that a person should forfeit all of his rights whenever he violates other people’s rights through his own actions. The extent of forfeit has to be proportionate to the extent of the violation. It is difficult to specify this relationship more precisely. However it is important to keep in mind, when discussing the idea of rights forfeiture, that we are not trying to develop a full-blown philosophy of punishment. Punishment serves a number of objectives, including deterring offenders, and expressing the community’s abhorrence of

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certain crimes, and our aim here is only to establish whether and to what extent punishment is permitted by our best theory of human rights.35 At the upper limit we may be able to judge that a certain punishment is so disproportionate to the offence that has been committed that it constitutes a breach of the offender’s human rights, but beneath that limit there will be considerable indeterminacy over which particular rights have been lost as a result of a rights-violating action. This indeterminacy extends to the question of the duration of rights forfeiture. We do not want to say that a person who at one time shows himself unwilling to respect the rights of others is to be placed outside the realm of reciprocity in perpetuity. That is one reason why Locke’s bestial analogies are disturbing – they suggest that the aggressor should be removed from the human community entirely and be considered forever incapable of recognizing the common rule of reason. If we start from the premise that human rights are dependent upon reciprocity and can be forfeited only to the extent that the offender’s behaviour manifests non-recognition of the rights of others, then forfeiture can come to an end when we have good reason to think that the offender is now willing to accord reciprocal respect. This is a necessary but not sufficient condition, since punishment serves other purposes besides prevention. Thus even if it were the case that a person who has forfeited rights immediately and sincerely repents of her action, she would not be entitled to reclaim them forthwith. She has forfeited rights, and it is therefore permissible to inflict an appropriate level of punishment up to the extent of the forfeit. Her subsequent behaviour should, however, be taken into account when remission is being considered. If she can demonstrate – not just by making an announcement to this effect – that she is ready to rejoin the community of right-holders on terms of reciprocity, this gives us a reason to bring the forfeiture to an end. I don’t suggest that the practice of punishment could or should be mainly governed by this consideration, since there needs to be consistency in the terms of imprisonment handed out for particular offences, but insofar as the existing practice allows for some flexibility – such as reducing sentences for good behaviour, granting prisoners parole, and so forth – this is what a rights-forfeiture approach would prescribe. By contrast, mandatory whole-life sentences seem to be inconsistent with such an approach, inasmuch as they seem to deny those who are given them any opportunity to re-enter the human community as a reciprocal respecter of the rights of others.36 The underlying premise here is that we must approach every human being with the presumption that they are willing and able to recognize the rights of others on a reciprocal basis. That is what lies behind the thought that human rights do not have to be earned. Even in the case of somebody who violates the principle of reci35

36

The clear, but limited, role that forfeiture of rights plays in justifying the institution of punishment is well explained in W. D. Ross’s brief, seminal treatment. See W. D. Ross, The Right and the Good, 2002, 56–64. In contrast, a more ambitious account of the place that rights-forfeiture can play in justifying punishment is developed in Kit Wellman’s, The Rights-Forfeiture Theory of Punishment, Ethics 122 (2012), 371–93. Wellman concedes however that his approach does not have much to say about precisely which rights wrong-doers forfeit by their actions, or about the duration of the forfeit. I do not take a stand on whether they might sometimes be justified on other grounds, such as providing reassurance to potential victims that particularly dangerous criminals will not be released.

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procity, we should act towards him on the basis that he is capable of rejoining the community of rights-respecting agents until we have conclusive evidence that this is not so.37 This limits the extent to which human rights can be forfeited, and also, I shall now argue, means that certain of these rights must be treated as unconditional. CONDITIONAL

AND UNCONDITIONAL HUMAN RIGHTS

To return for a moment to the starting point, I assume that everyone has human rights simply in virtue of features that identify them as human beings and not because of any special actions that they have performed or traits that they display. I have left it an open question how human rights are to be justified, i. e. which particular features of human beings we appeal to in order to show that some particular right belongs on the list of human rights. My own view, which I have argued for elsewhere, is that human rights are grounded on human needs, and are to be understood as members of the set of rights that must be protected if human beings are to lead minimally decent lives.38 If we decide that certain of these rights are held unconditionally and others conditionally, this is not because – a point I need to emphasize to avoid misunderstanding – the U-rights, as I shall call them, are more basic or more important than the C-rights. All human rights are important, and if in the hopefully rare cases in which they come into conflict we judge that some are more important than others, this will have to do with the particular needs they serve to protect. The distinction between U-rights and C-rights arises from the idea of forfeiture itself. If we say that a human right may be forfeited when the right-holder displays sufficient disrespect for the rights of others, then we must be able to determine when forfeiture has occurred, and we must also be open to the possibility, as argued above, that rights that have been forfeited may in due course be regained. For these requirements to be fulfilled, there must be some human rights that are held unconditionally, as I shall now try to explain. There are two categories of U-rights, procedural and substantive. Certain procedural rights are needed if we are reliably to discover what other rights, if any, have been forfeited. Since our underlying thought is that human rights can only be forfeited at all by behaviour that implies non-recognition of the rights of others, we need to be sure that the forfeit has been incurred before acting on it by denying the offender (some of) his rights. This implies using familiar legal procedures having to do with the gathering of evidence, the interrogation of suspects, the right to be defended in court and so on. It might seem at first paradoxical that these rights are unconditional whereas other rights that may be felt as more valuable in themselves by their possessor are not, but the paradox disappears once we accept that no human right can be removed unless there is good and reliable evidence that the person in question has forfeited it.

37

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Could we have such evidence? Perhaps we might, in the case of extreme psychopaths, whose behaviour and attitudes demonstrated complete indifference to the suffering they were inflicting on others, and who proved wholly unresponsive to all forms of therapy. But I do not know how many such cases there are outside of the realm of fiction. See David Miller, National Responsibility and Global Justice, 2007, chapter 7 and Miller (note 23).

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The second category of U-rights embraces substantive rights. Consider first the right to life. Many (including Locke, as we saw) have assumed that this could be forfeited by a sufficiently severe breach of the rights of others, paradigmatically deliberate killing. But what distinguishes this right from almost all others is that, obviously enough, if it is forfeited and the forfeit is acted upon, it cannot be regained. So according to the position developed here, before putting someone to death one would have to know, with a sufficient degree of certainty, that that person was incapable of changing in such a way that he or she could re-enter the realm of rights on terms of reciprocity. And, subject to the rider contained in footnote 37, this is a condition that may prove impossible to fulfil. We owe every human being, no matter what he or she has done, the opportunity to show that he or she can after all re-enter the community of rights. If we impose the death penalty we block this opportunity entirely. So the argument for an unconditional right to life does not rely on a claim about the intrinsic wrongness of all killing,39 but on the presumption that the person we would be about to kill is prospectively someone with whom we are able to engage with on terms of reciprocity. Another substantive U-right is the right not to be physically or mentally damaged in a way that is likely to prevent the sufferer from leading a minimally decent life in future. Since the idea of forfeiture, as I have argued, implies losing certain rights for a period until the person subject to the forfeit is able to demonstrate that they are willing to re-enter the community of human beings fully on terms of reciprocity, the rights that are forfeited cannot be rights that it is impossible to regain, such as bodily mobility or sight. Included here too would be the right to basic health care, since without health care during the period of forfeiture there must be a significant risk that the person will lose some of the capacities needed to lead a minimally decent life. This approach also allows us to see why the right not to be tortured is a U-right. Assume for present purposes (what may not be true in fact) that torture does not leave its victim permanently scarred or crippled. Consider a case in which the person who is due to be tortured has shown himself willing to torture others on numerous occasions. Clearly this person has forfeited his human rights to an extent that makes severe forms of punishment permissible. Torture, however, is not punishment, nor is it just the infliction of severe pain. It involves a direct assault on the victim’s personhood, which it tries to destroy from within by getting the tortured person to collude with his torturer. As Sussman explains in his analysis of the experience of torture, ‘in the most intimate aspects of his agency, the sufferer is made to experience himself not just as a passive victim, but as an active accomplice in his own debasement … the victim experiences within himself a dialectic where some part of him serves as the eager agent of his tormentor.’40 On the view defended here, to treat someone in such a way as to undermine their very capacity to act as a rightsbearing and rights-recognizing individual is impermissible no matter what they have previously done. 39 40

It does not therefore rule out killing in immediate self-defence against lethal attack. In such a case the rights of life to two people cannot both be protected, and the forfeiture approach allows us to discriminate in favour of the one who is not in breach of reciprocity. D. Sussman, What’s Wrong with Torture, Philosophy and Public Affairs 33 (2005), 23–4

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Can the approach I am developing here go far enough to explain the full list of human rights that intuitively we regard as unconditional? Consider in particular the right to bodily integrity. We would normally regard it as a breach of human rights if criminals’ rights over their bodies were violated in ways that did not significantly impair their ability to lead a minimally decent life in future. My approach can explain why the cutting off of a hand is disallowed, but what about the amputation of one finger? Or, an even more disturbing case, consider the removal of a kidney in cases where it is known that the victim will manage well enough with his one remaining kidney.41 Such treatment would be disallowed by the human right not to be subjected to ‘cruel, inhuman or degrading treatment or punishment’ listed in the official documents, but the problem is to explain why this alleged right takes the form that it does. One can of course find good reasons from within the general theory of punishment why these invasive modes of treatment would be disallowed. If the aim of punishment is prevention or deterrence, there will be modes of treatment (such as incarceration) that serve these aims better than bodily violation. But here we are approaching the problem strictly from a human rights perspective. The issue is why the human right to bodily integrity qualifies as a U-right, even when we know that certain ways of breaching this right will not prevent the victim from leading a minimally decent life in future. Why is the right in question not (partially) forfeitable? It may be helpful at this point to return to Locke, and to reflect further upon the uneasiness aroused by the bestial analogies he uses to explain how we may treat rights violators. As we saw, Locke himself does not accept the full implications of these analogies, since he asserts that wrongdoers retain certain rights despite their wrongdoing, something he would not have said of wolves or lions. We must, in other words continue to treat the wrongdoer as a human being even while we defend ourselves against him and later impose punishment, curtailing certain of his rights in the process. My development of Locke’s argument has emphasized reciprocity and the importance of preserving the conditions under which the person who has violated rights can later rejoin the human community as an equal participant. But it now seems that this appeal to future reciprocity cannot do all of the work that we need it to do. Instead we must introduce the idea that certain ways of treating human beings are forbidden no matter what they have done. Appeal might be made here to the idea of human dignity. It certainly seems that what we find objectionable about violations of bodily integrity, or for example about treating people in ways that are humiliating even if they do not cause permanent damage, has something to do with this idea.42 I do not think that an appeal to dignity can actually explain why we find certain ways of depriving people of their rights acceptable and others ways unacceptable, but it may be helpful as a way of signalling that such a line exists.43 The basic intuition is: ‘This is a human being. Because he has 41 42

43

I am grateful to Francois Hudon for suggesting this example. It is worth underlining again that C-rights may be more valuable to their possessor than Urights. For example, it is conceivable that a convicted criminal might prefer the loss of a finger, or a short period of humiliating treatment, to several years of imprisonment. Nevertheless, the latter would be permissible as punishment while the former would not. There may also be some cultural variation over which ways of treating people are regarded as compromising their dignity. If so, it may reinforce my suggestion that an appeal to dignity works better as a signal than as an explanation of why certain rights are unconditional.

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deliberately violated others’ rights, some of his own may be forfeit. But because he remains a human being nonetheless, there are certain things that we may not do to him.’ If this intuition is correct, we can explain why some human rights are U-rights, even if violating them would not prevent the victim from regaining her full set of rights at some future time. CONCLUSION Let me now attempt to retrace the steps in the argument I have presented. I began from what one might call the naïve view of human rights, which is that they are rights that all human beings hold unconditionally, simply by virtue of being human and regardless of their conduct. This is probably the view that many of us would be inclined to take at first glance. But if we left it at that, it would first of all make nonsense of a good deal of our actual practice. Even those who hold pacifist views from a conviction that killing in war is always an unjustifiable violation of the rights of those killed would probably concede that it was permissible to punish criminals in ways that would otherwise count as violating their rights, subject to the usual riders about due process. Now one might bite this bullet too and outlaw most of the forms of punishment we currently use on human rights grounds. But second, there is surely something paradoxical about treating human rights as entirely exempt from the requirements of reciprocity that otherwise pervade our moral life. That is, much (perhaps most) of our moral behaviour consists in complying with moral rules on the assumption that others are going to comply with them too, and this in turn implies that we have to be willing to do something to sanction non-compliers. Why, then, should it be any different when human rights are involved? Human rights correspond to some of the most important duties that human beings owe to one another. So we should be very reluctant to violate them, but by the same token, we have reason to apply heavy penalties to persistent violators. If we could find penalties that were severe enough but that still left all of the human rights of the violators intact, that might be ideal, but equally it is not clear on what grounds one who deliberately violates the human rights of others can complain when some of his own rights are taken away in turn. In addressing this question, my main proposal has been that once we see human rights in this way as subject to requirements of reciprocity, we have to introduce and use the idea of forfeiture. When people act in ways that reveal a clear disposition not to recognize the human rights of others, they forfeit some rights of their own. The rest of us are released from the specific duties that correspond to these rights, and in this way practices such as imprisonment for serious crimes become permissible. I have gone a little way, though not far enough, in exploring how forfeiture occurs and how we can judge which rights are forfeited. At the same time, I have wanted to resist Locke’s strong claim that once he has acted in ways that make his rights liable to forfeiture, we may treat the aggressor as though he were ‘one of those wild Savage Beasts, with whom Men can have no Society.’44 Whatever the extent of his wrongdoing, this person is still a human be44

Locke (note 4), 274

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ing, and therefore potentially able to recognize the rights of others reciprocally. This is a capacity we must respect. We do not do so when we torture people, treat them in degrading ways, or engage in targeted assassinations that are not cases of immediate self-defence. So within the standard roster of human rights whose continued possession, I have argued, should be seen as conditional on the right-holder reciprocally recognizing the rights of others, there is a smaller sub-set of rights, some procedural and some substantive, that cannot be forfeited no matter what. David Miller Nuffield College Oxford, OX1 1NF United Kingdom

TETSU SAKURAI, KOBE (KOBE UNIVERSITY) HUMAN RIGHTS

AND

INTERNATIONAL SOCIETY

1. INTRODUCTION David Miller’s Kobe Lecture, ‘Are Human Rights Conditional?’ is a fascinating discussion on one of the most important issues of legal philosophy, that is, the conditionality and limits of human rights. It is interesting because it not only reveals one of the evasive and intractable features of human rights, but allows us to see more clearly the role that the concept of basic human rights plays in his theory of justice and nationality. Miller’s work on human rights is of particular interest to me because he is known worldwide as one of the significant theoretical nationalists of our time. How does the universalism of human rights coexist with his commitment to nationalism? Can they really be reconciled with each other? Does the recent development of Miller’s theory of global justice build a bridge between his nationalist bent and the idea of human rights? To put it the other way around, this lecture, as I see it, not only has special significance and implications for his theory of global justice, but also raises a sticky problem as to the theoretical consistency of his multifaceted political philosophy. Let me lay out what this means in more detail below. 2. CONDITIONAL HUMAN RIGHTS In 1898 Émile Durkheim published an essay intended as a defence of Alfred Dreyfus and declared in it that individualism as a nineteenth-century social belief system, distinct from individualism as the mere worship of private happiness and self-interest, was the only creed that could assure the national integration of contemporary French society. This individualism is not admiration of one’s own empirical particularity, but the consecration of ‘the human person in general’. According to Durkheim, it even deserves to be called ‘the religion of humanity’.1 This [human person] has something of the transcendent majesty that churches of every age attribute to their God. It is perceived to take on the mysterious propriety that insulates holy things, protects them from vulgar contacts, and takes them out of common circulation. And this is precisely where respect for human person comes from. Whoever makes an attempt on someone’s life, liberty, or honour inspires an emotion of fear in us, which is analogous in every single aspect to an emotion that a believer feels when seeing his idol profaned.2

As to whether or not it is appropriate to see respect for human beings as equivalent to religious worship, we will not go into any further detail here. However, it is apparent that Durkheim’s individualism and Miller’s theory of human rights both have the ‘human person’ or ‘personhood’ as a core concept, and that Durkheim regards the idea of human rights as a normative consecration of ‘human nature in 1 2

Émile Durkheim, La science sociale et l’action, 1987, 270–71 Durkheim (note 1), 264–65, my translation

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general’ rather than as a rational justification of human reason. What is important here is that the consecration or glorification implicit in individualism is addressed not to any particular individual, but to the concept of ‘human person’ itself.3 As Durkheim points out, through the course of the diversification of individual beliefs and the development of the division of labour, we have come close to, and almost reached by now, the stage where members of the same society have nothing in common but ‘being human’, that is, the attributes constituting the human being in general. Moreover, because of the diversity of cultures and traditions in our world, the idea of the human person seems to be the only quality that unites all peoples across borders. Even though today we all see advances in globalization and the homogenization of the consumer culture, this still remains the case. That is the reason why many cosmopolitans today invoke the idea of the human person and that of human rights when they aim to establish distributive justice on a global scale.4 And it is in this context that David Miller’s approach to the idea of human rights seems very intriguing. If human rights are based upon the respect, and even the worship, of the idea of the human being in general, does this respect not influence Miller’s theory of nationalism? If the enjoyment of human rights is contingent on the right-holder’s recognition of the rights of others, does this have any normative implications for our views of global justice? What, we might ask, brought Miller to the examination of the conditionality and reciprocity of human rights soon after criticising cosmopolitanism in his theory of global justice?5 As we can see, Miller clearly expounds his views on the conditionality of human rights in his Kobe Lecture. We tend to see human rights as granted to all human beings without any effort on their part, that is, as awarded us on the basis of our common humanity. Put simply, human rights are natural rights, since they are simply accorded by virtue of our human nature. Nevertheless, this is definitely not the case in our everyday lives, as, for example, when we wage war or inflict punishment on people. Theory and practice are quite inconsistent with each other in that respect. Miller points out the embarrassing fact that, though we suspend or forfeit ‘human rights’ under many circumstances, we are not puzzled in doing so. This leads him to disclose two important – and seemingly contradictory – findings. One is that most human rights are not unconditionally granted us, but based on reciprocity between the right-holder and others. In what sense are human rights reciprocal? Miller says that ‘our possessing them [human rights] is conditional on our willingness to respect them in others’.6 This is an intriguing assertion, since it suggests that what we call ‘human rights’ are not ‘natural rights’ based only on our humanity but ‘artificial rights’ in the sense that they depend on a sort of societal relationship between the right-holder and other persons. This explains why he says in his conclusion that ‘[h]uman rights correspond to some of the most important duties that human beings owe to one another’.7 3 4 5 6 7

Durkheim (note 1), 267 See, for example, Henry Shue, Basic Rights, 1996; Thomas Pogge, World Poverty and Human Rights, 2008; Charles Beitz and Robert Goodin (eds.), Global Basic Rights, 2009; Charles Beitz, The Idea of Human Rights, 2009. See David Miller, National Responsibility and Global Justice, 2007, ch. 2. David Miller, Are Human Rights Conditional?, this volume, 17. Miller (note 6), 33

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Another insight Miller provides in this lecture is that, even though most human rights are grounded in reciprocity, there lie beneath standard conditional rights certain unconditional ones, such as the right to life, the right not to be tortured, and the right not to be physically or mentally damaged in a way that is likely to prevent the sufferer from leading a minimally decent life. These are unconditional rights because they cannot be forfeited by contravening respect for the rights of others. However, it should be noted that Miller ultimately appeals to the idea of human dignity when he tries to justify some human rights as unconditionally given us, no matter what we have done. The expression ‘human dignity’ seems, as with ‘human person’, to give scope for various interpretations, which is why it is worth exploring further what ‘human dignity’ really implies in this context. We cannot go into greater detail on this topic here, but surely there are some interesting questions. For example, how are unconditional human rights related to a global minimum based on human needs that Miller has defended in his National Responsibility and Global Justice? If people everywhere are entitled to the global minimum as a matter of justice,8 how does the idea of justice entail the idea of human dignity? 3. ARTIFICIAL SYSTEM

OF

RIGHTS

Let me mention here two works that instantly came to mind when I read Miller’s Kobe Lecture and his conclusions. One is David Hume’s theory of justice as expounded at the beginning of Book 3 of his Treatise of Human Nature.9 The other is a more recent essay entitled ‘Limiting Sovereignty’ by Henry Shue, who until recently was one of Miller’ s colleagues at Oxford.10 Let us first consider Hume’s views on justice. Miller’s lecture reminds me of this famous eighteenth-century philosopher’s Treatise, which lists the establishment and stability of possession as one of the rules of justice, and then treats justice as an artificial virtue. In what John Rawls calls ‘the circumstances of justice’,11 Hume asserts that the rule concerning respect for the property of other persons arises from ‘a convention enter’d into by all the members of the society to bestow stability on the possession of those external goods, and leave every one in the peaceable enjoyment of what he may acquire by his fortune and industry’.12 As is well known, this convention is not a promise but ‘a general sense of common interest’.13 The concept of convention admirably captures the idea of the normative reciprocity between the right-holder and others who are supposed to respect the property right. The rule concerning the stability of property presupposes that I recognize that everyone else also participates in the formation and observance of the rule and feels a ‘common sense of interest’ in doing so. In other words, the common interest of maintaining the stability of property is realized only when every person expresses a willingness to 8 9 10 11 12 13

Miller (note 5), 166 David Hume, A Treatise of Human Nature, 2000 Henry Shue, Limiting Sovereignty, in: Humanitarian Intervention and International Relations, ed. J. Welsh, 2006 John Rawls, A Theory of Justice, 1999, 109 Hume (note 9), 3.2.2.9 Hume (note 9), 3.2.2.10

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regulate his or her own behaviour by the normative idea of private property.14 In this sense, the protection of one’s right to property is conditional on one’s own reciprocal regard for the property right of others. Thus Hume says: I observe, that it will be for my interest to leave another in the possession of his goods, provided he will act in the same manner with regard to me. He is sensible of a like interest in the regulation of his conduct. When this common sense of interest is mutually expressed, and is known to both, it produces a suitable resolution and behaviour. And this may properly enough be called a convention or agreement betwixt us …15

Hume refers to these rules of justice as ‘fundamental laws of nature’, adding that what he means by ‘nature’ is ‘what is inseparable from the species’.16 Therefore, we may call the right to private property one of ‘human rights’, if not ‘natural rights’ because it is ‘not deriv’d from nature but arises artificially’.17 Miller discusses in his lecture Locke’s theory of the forfeiture of rights at length, and finds that ‘there was something right about the idea that human rights are dependent upon reciprocity’.18 With regard to the reciprocity indispensable for the stable system of rights, however, it seems to me that Miller’s views on conditional human rights have much more in common with Hume’s theory of an artificial virtue. According to Miller, the enjoyment and protection of human rights depends on whether one shows respect for the same rights accorded to other people. Hume also makes it clear that people need to acknowledge the sense of common interest between them and to control their behaviour according to it in order to establish and maintain the system of private property. This comparison allows us to re-evaluate Miller’s theory of human rights, since both Miller and Hume seem to imply that human rights do not logically precede a society, but appear on the scene simultaneously with the formation of a society. Incidentally, it is interesting to note that Hume was one of the earliest and sharpest critics of Locke’s theory of social contract and that Miller himself parts company with Locke in the conclusion of On Nationality.19 4. CONDITIONAL SOVEREIGNTY In his influential book Basic Rights, Henry Shue argues that everyone has ‘basic rights’ to security, liberty and subsistence, and defines ‘basic rights’ as rights whose ‘enjoyment is essential to the enjoyment of all other rights’.20 Shue’s basic rights are, without doubt, not identical with Miller’s idea of ‘basic human rights’, but comparable to it in that both are inferred from the general facts concerning the needs and vulnerabilities of human beings.21 It is also noteworthy that Shue repeatedly emphasizes in ‘Limiting Sovereignty’ the conditionality of sovereignty as a right. Obviously, he is sure that sovereignty is conditional in the sense that states are only fully legitimate in 14 15 16 17 18 19 20 21

See David Miller, Philosophy and Ideology in Hume’s Political Thought, 1981, 62–63. See Hume (note 9), loc. cit. Hume (note 9), 3.2.1.19 Hume (note 9), 3.2.1.17 Miller (note 6), 22 David Miller, On Nationality, 1995, 194 Shue (note 4), 19 Miller (note 5), 164–84

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so far as they act on behalf of their citizens and protect their basic rights. This is the view that both reflects and contributes to one of the aspects of liberal solidarism in the 1990s.22 At the same time, Shue does not so much focus on the right of sovereignty to be free of intervention from all other states as on the right of sovereignty to refrain from intervention in other states. This means that he seriously wonders whether a state has a right quietly to refrain from humanitarian intervention in a failed state that cannot protect its own people’s basic rights. With an inclination to say No to this question, Shue insistently appeals to the nature of a right. According to him, ‘being at liberty is distinctly not the same as having a right to a liberty’.23 It is incoherent to suggest the existence of a right within anarchy. As he says: Rights rest upon limiting rules, and where rules function, there is less than full anarchy. States might wage war within a genuine anarchy, but if states enjoy a right to do anything, including a right to wage war, they are in a partially rule-governed situation, not a complete anarchy.24

This implies that if there is no rule-governed society there are no duties; and with no duties, there are no effective rights.25 If a state has a sovereign right to be free of intervention from other states, that is because all other states are obliged to respect that right. Those states, on the other hand, have also the same right to non-intervention because the state in question is, in turn, obliged to respect their sovereignty. The reciprocity between the states is obvious. It is in this context that Shue asserts ‘if sovereignty is a right, sovereignty is limited’.26 We can see that what Shue points out here is, as it were, an expanded version of Miller’s views on the conditionality of human rights. Just as the enjoyment of universal human rights is conditional on one’s recognition of the individual rights of others, so a state’s right to sovereignty presupposes its willingness to comply with the duty to respect the sovereignty of other states. Furthermore, Shue clearly declares that when a state utterly fails to fulfil its duty to protect, and to avoid violating, the fundamental rights of its own people, its sovereignty should, accordingly, be severely limited, at the same time as the performance of that state in terms of its duties should be judged by international norms, and not by the norms of any one single state.27 It is also interesting to note that Shue refers to Miller’s views on nationality when he suggests that, while powerful states may exercise their sovereignty to choose to stand by quietly, their sovereignty should really be limited and a duty should be imposed on them to intervene in other states, even with the use of force, when it is necessary to protect one of the most basic human rights, namely, the right not to be killed. In other words, he even argues for humanitarian intervention as a duty in cases where many human lives are put at risk and where it is impossible for a particular nation to protect its basic rights, giving as he does the signal examples of widespread famine and genocidal massacre in Rwanda and Bosnia.28 22 23 24 25 26 27 28

Andrew Hurrell, Another Turn of the Wheel?: Basic Rights in International Society, in: Global Basic Rights, eds. C. Beitz and R. Goodin, 2009, 59 Shue (note 10), 15 Shue (note 10), 14 Shue (note 10), loc. cit. Shue (note 10), 15 Shue, (note 4), 174–5 Shue (note 10), 18–26

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However, it is not clear how the idea of the reciprocity of state sovereignty puts a limit on the external sovereignty of some states in such ways as to oblige them to interfere in other states in order to protect the most fundamental rights of the inhabitants of the states thus interfered. Does Shue impose too many international duties on major powers on account of the concept of the reciprocity of sovereignty? This question can be answered by carefully examining his idea of the complex levels of duties. One of Shue’s valuable insights is the idea that ‘[t]he complete fulfilment of each kind of right involves the performance of multiple kinds of duties’, or ‘successive waves of duty’, to use his memorable phrase.29 According to Shue, you cannot secure someone’s right, say, ‘the right not to be subjected to genocidal assault’, by fulfilling only one kind of duty, whether negative or positive. He claims that there must be at least three levels of duties in order to secure the fundamental right not to be subject to genocide: the primary duty imposed upon all of us not to commit genocide; the secondary, or default, duty of the state to protect its people against genocide; and the third duty, or the second level of default duties, imposed upon those states with power and resources, to rescue victims of the state that has failed to perform the secondary duty.30 This trichotomy implies that the realization of the right not to be killed would require international society to intervene when it sees that a particular national community is violating, or is unable to protect, the rights of its own people. It is in this context that Shue quotes an important passage from Miller’s On Nationality and invokes his compromise that leaves space for the second default duty to protect people’s lives to be imposed on the international community: It is probably true that the ethical claims of nationality could not justify anyone in violating the rights of an outsider by, say, killing or injuring him. But if we take nationality seriously, then we must also accept that positive obligations to protect basic rights (e. g. to relieve hunger) fall in the first place on co-nationals, so that outsiders would have strong obligations in this respect only where it was strictly impossible for the rights to be protected within the national community.31

What is interesting here is that Miller suggests in this proviso that outsiders would have a positive obligation to protect basic rights if people’s basic rights, especially the right not to be killed, were put at risk, and the national community itself was unable to protect them. Incidentally, Brian Barry once seemed to think that Miller denied that it was the responsibility of developed nations to intervene in nations that violate basic human rights on a large scale. As he says: David Miller claims that nation-states’ failure to meet their responsibilities does not create a responsibility for others to act. But when children are neglected or abused by their parents, what virtually everybody (including, I am sure, Miller) believes is that the state should step in to protect them. Similarly, if political authorities fail in their responsibilities, this should create an obligation to intervene.32 29 30 31 32

Shue, (note 4), 52 Shue (note 10), 17–20 Miller (note 19), 79 Brian Barry, Statism and Nationalism: A Cosmopolitan Critique, in: Global Justice, eds. I. Shapiro and L. Brilmayer, 1999, 51

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Today, however, we know – and I believe Miller also agrees – that this is a misunderstanding. Miller explicitly recognises in his National Responsibility and Global Justice that when ‘we encounter a society most of whose members are chronically malnourished, and the reason for this is that they insist … on adhering to traditional forms of agriculture that cannot produce an adequate supply of food’, we have ‘a responsibility to intervene’, not coercively, but to send in aid and persuade it to adopt more productive methods of production.33 Even though Miller adds that remedial responsibility in such cases is not ‘a duty of justice, but is humanitarian in nature’, it is noteworthy that he claims that advanced nations have a responsibility to ‘intervene on the ground that all human beings have basic rights that must be fulfilled as conditions of a decent life’.34 Characteristically, he takes cautious steps and recommends us to intervene in a very peaceful manner, that is, through aid programmes and persuasion in such ways as to bring about ‘a cultural shift that allows people to adopt new methods of production’.35 As far as content goes, his theory on remedial responsibility briefly explained here is in line with Shue’s arguments for humanitarian intervention, even though I am not quite sure if Miller feels comfortable about this comparison, since Shue is widely known as a cosmopolitan. 5. EMERGENCE

OF AN

INTERNATIONAL SOCIETY

In section 3, I pointed out that Miller’s theory on human rights has much in common with Hume’s views on the artificial virtue of justice. I also highlighted that Shue’s views on the limits on sovereignty are broadly similar to Miller’s theory of the conditionality of rights. Now I want to pay attention to one of the most basic concepts of legal and political philosophy, the concept of ‘society’, which plays a crucial role in all these theories. When Hume emphasizes that the rule concerning the stability of property presupposes a convention, he also believes that everyone is guided by the ‘common sense of interest’, that is, by a mutual recognition of ‘interested affection’ of others.36 To put it another way, people are quick to realise that they can fulfil their ‘interested affection’ much more effectively by redirecting that affection and complying with the rule of property than by leaving it to nature.37 It is important to note here that Hume identifies the establishment of the rule of property with the formation of society itself. As he says: No one can doubt, that the convention for the distinction of property, and for the stability of possession, is of all circumstances the most necessary to the establishment of human society, and that after the agreement for the fixing and observing of this rule, there remains little or nothing to be done towards settling a perfect harmony and concord.38

For Hume, the rule for establishing private property does not necessarily have to come from a planned governmental order; indeed, a pre-governmental condition 33 34 35 36 37 38

Miller (note 5), 258 Miller (note 5), loc. cit. Miller (note 5), 259 Hume (note 9), 3.2.2.13 Miller (note 14), 63–64 Hume (note 9), 3.2.2.12

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may in itself be a sufficient social condition. While ‘a social condition without government’ has a real possibility in his theory, ‘a society without the rules of justice’ is totally unrealistic. Shue also emphasizes the simultaneity of the shared understandings and the formation of a society, with the aim of giving real substance to an ‘international society’. In this connection, Michael Walzer states: ‘There cannot be a just society until there is a society; and the adjective just doesn’t determine, it only modifies, the substantive life of the society it describes’.39 Shue flatly denies Walzer’s ‘society first, shared norms later’ thesis, which suggests that ‘only after a society has formed can “it” begin to shape shared understandings of justice’,40 and, indeed, would put Walzer’s ideas in reverse order, as we may gather from his following statement: The agreements about what is just, fair, important, and so on constitute the fabric of the society – the shared beliefs (and aspirations and fears) are the skeleton around which the society forms. It is impossible that the society should take shape first and only then the skeleton be added. To the extent that the skeleton of ‘values’ is unified and tightly articulated, so is the society; to the extent not, it is not.41

Even though the level of ‘society’ is quite different here, the gist is clearly similar to Hume’ s theory of justice. It is also apparent that Shue introduces his thesis of ‘shared norms make for a society’ in order to promote mutual understanding across national borders and to urge us to participate in humanitarian interventions as means of protecting universal human rights. If we believe that standard human rights are conditional on reciprocal recognition of the rights of others, we may perhaps also believe that the idea of human rights presupposes ‘a general sense of common interest’ that can be identified with the existence of a society. To the extent that Miller advocates basic human rights and claims that ‘any agent individual or collective, who is able to help protect them [the unprotected], may in principle bear remedial responsibilities’,42 he might seem to be placing the existence of society above the level of the nation-state. However, as far as we know, the case is different. In fact, Miller takes a very sceptical attitude towards the reality of ‘an international society’, especially in his National Responsibility and Global Justice, where he criticizes monistic theories of justice that see global justice as ‘social justice writ large’, and adopts what he calls a contextual view of justice. He emphasizes that social justice is ‘a matter of establishing the conditions under which they [people] can continue to act as free and equal citizens’, and points out the absence of an ‘equivalent to this at global level’.43 According to Miller, ‘cultural differences between societies make it less likely that people will be drawn into comparing themselves with each other along a single dimension such as material wealth’.44 Certainly, there is no ‘equal citizenship’ or ‘a common public sphere’ at global level yet. Nevertheless, the lack of ‘global equal citizenship’ seems to be nothing more than a reflection of the absence of ‘a world state’. Moreover, despite the cul39 40 41 42 43 44

Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality, 1983, 313 Shue (note 10), 25 Shue (note 10), loc. cit. Miller (note 5), 164 Miller (note 5), 15 Miller (note 5), 78

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tural differences, we are far from indifferent to living conditions of other peoples in the world; indeed, we are often shocked to see a serious inequality in ‘material wealth’ between developing and developed countries. And now that it has become extremely difficult for us to deny the legitimacy of universal human rights and the ‘shared beliefs’ that support this legitimacy, are we still unable to affirm the emergence of ‘an at least partially ordered society’ at international level? Do we really have to wait until a ‘global public sphere’ comes on the scene before we can talk meaningfully of ‘an international society’? 6. CONCLUSION The concept of ‘society’ is certainly equivocal and in that sense can be an intractable stumbling block for political and legal philosophers. However, a certain level of mutual recognition of an ‘international society’, if not a ‘global public sphere’, seems indispensable for the protection of universal human rights and the allocation of remedial (national) responsibility to protect them. To be sure, there are some leftist theorists who think ‘international society’ has only ‘a nebulous, almost fictive character’ and, moreover, they regard the ideas of human rights as an essential element of ‘partial and distorted’ European universalism.45 On the other hand, an acknowledgement of even a limited duty to contribute to the protection of basic human rights would represent one important aspect of a notion that, besides national societies, there is the substance of an international society.46 In other words, unless we had a sense that we human beings form part of an international society (however limited that may be), it would be impossible for us to take the implementation of human rights seriously. Recognition of the emergence of an international society would be, even for Miller, not a concession to, let alone a defeat by, cosmopolitanism. Rather it would be a significant step towards a productive integration of social justice and global justice. As I have shown in this essay, even though Miller’s Kobe Lecture is focused on one fundamental issue of modern legal philosophy, there is no doubt that its theoretical implications are, in light of the recent development of his theories on nationality and global justice, profoundly important to us all. Tetsu Sakurai Graduate School of Intercultural Studies, Kobe University Tsurukabuto 1-2-1, Nada, Kobe 657-8501 Japan 45 46

Wallerstein, European Universalism: The Rhetoric of Power, 2006, xii, 21. See also Michel-Rolph Trouillot, The North Atlantic Universals, in: The Modern World-System in the Longue Durée, ed. I. Wallerstein, 2004, 230. Shue (note 10), 27. Allen Buchanan also argues from a perspective similar to mine that the acknowledgement of human rights is inconsistent with what he calls the Permissible Exclusivity Thesis, that is, a claim that it is always permissible for a state’s foreign policy to be determined only by the national interest. However, I need to add here that Miller’s theoretical nationalism does not imply anything like the Permissible Exclusivity Thesis. See Allen Buchanan, In the National Interest, in: The Political Philosophy of Cosmopolitanism, eds. G. Brock and H. Brighouse, 2005, 110–26.

KATSU TOMISAWA, KYOTO (DOSHISHA UNIVERSITY) HUMAN RIGHTS

AS

RECIPROCITY

INTRODUCTION Although human rights are usually designated as universal, inviolable and inalienable rights, they are not actually practised in such terms. Accordingly, David Miller asks: Are human rights conditional or unconditional? Or are they a kind of rights in between them? On the one hand, Miller answers by affirming the conditional character of some (or most) human rights; on the other, by asserting the fundamental existence of inalienable and absolute human rights. In other words, Miller suggests that some (or a small minority of) rights are unconditional. In comparing these two conceptions of human rights with each other, he considers Locke’s theory of rights and is in partial agreement with his argument about forfeiture. However, he disagrees with Locke’s assertion that offenders who invade others’ natural rights leave the human (reason) world and enter the beast (non-reason) world. (Locke thinks that beasts, i. e. non-human animals, have no concept of rights.) Thus, according to Locke, offenders can no longer claim rights as human beings. By contrast, Miller suggests that human beings have unconditional rights. Here, his basic position departs from the ‘strong’ foundationalism of Lockean natural law theory (that is, justification by a certain theological and philosophical position), as he begins to develop a realistic and pragmatic human rights theory. This might have some link with one of the recent trends of human rights theory, and it would appear that the development of Miller’s human rights theory reflects his interest in the future shape of the global order. In this essay I shall comment on some of the implications of Miller’s theory of human rights from the perspective of political theory. Before starting my comment, however, I would like to point out that Miller’s argument in the Kobe Lecture seems to be based on the concept of reciprocity. (My own understanding of the concept of reciprocity is that, legally speaking, it allows others to have rights which are similar to my own rights. Morally speaking, the concept is connected with an attitude to put myself in the other person’s shoes, that is, the capacity for empathy.) I find it remarkable when, for example, Miller says that even if a person destroys reciprocity in a relationship with others, there still is a potential ability for the person to recover that relationship. It seems that this understanding of human beings – that is, the notion of unconditional rights as something permanent – is at the root of Miller’s theory of human rights, and that makes it different from Locke’s theory of human rights. In my examination, I shall look at Miller’s concept of reciprocity partly in the light of his concept of nationality (which has an important role in his political theory), and partly from my particular interest, namely, the French concept of citizenship.

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1. THE CONCEPT

OF

RECIPROCITY

As is well known, the concept of reciprocity has played a central role in modern liberal political theory, especially in the social contract theories of Hobbes, Locke, and Rousseau. According to these theories, you obtain your rights if you accept that others have the same kind of rights as you do. This reciprocal idea of ‘the community of rights’ forms a basis for the conception of modern society. When Miller refers to reciprocity, it is plain that he does so with this tradition in mind, being himself a thinker in the modern liberal tradition. Reciprocity is a concept that entails the idea that other parties possess the same rights as I do. There is no disagreement about this idea among modern theorists, even though they disagree about the basis for reciprocity. Some say that the basis is ‘the sword’; others say that it is duty to God; still others say that it is a secular ‘religion of citizens’. Of course, ‘the sword’ is not used for its own sake but is something which compels people to obey natural law. Reciprocity is ordinarily and morally supported by inner, voluntary motivation, and is ultimately backed by outward force. Miller is clearly more interested in the voluntary motivation than in outward force. Miller’s notion of reciprocity is based mainly on Locke’s, even though he omits the theological foundation of Locke’s idea of reciprocity. One political theorist suggests that Locke regards the duty (natural law) for people to obey the order created by God as premise for the claim to rights.1 Unfortunately, Miller does not go into any detail here. We may not need to be told the premises of a past conception, but it is still important to understand those premises. As we can see, Miller bases his argument not on theology but on secular political theory. At the same time, he is aware that, in Locke’s era, religion and politics had complicated, even close, relations. On the other hand, if we try to argue reciprocity from a new perspective, we need an alternative explanation of social and human foundation that entails Lockean theology. What is the alternative explanation? It would appear that Miller’s concept of nationality as a basis of reciprocity is a kind of secular religion. Accordingly, we would need to examine what role nationality plays in his theory. 2. NATIONALITY It is well known that the relationship between nationality and liberal democracy has been tacitly acknowledged since the dawn of the modern era. And yet nowadays we cannot naïvely believe that such a relationship exists, because we are beginning to understand the reality of nationality and the consequences of rapid globalization. In the face of this new reality, we need to reconsider which relationship, if any, nationality has with liberal democracy, and that chiefly by reference to the normative direction of that relationship. In his book, On Nationality, Miller considers some of the key issues confronting modern nation states: the significance of national identity as a spiritual basis for 1

Setsu Kato, John Locke no Shiso Sekai [The Universe of Thoughts of John Locke], Tokyo, 1989; Setsu Kato, Commentary, in Japanese translation of John Locke, Two Treaties of Government, Tokyo, 2010

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democracy; the obligations required by a national community and their limits; the modern conditions of national self-determination (sovereignty, self-government, independence, federal system, etc.); the relation between cultural pluralism (or multiculturalism) and national unity. Of those many issues considered by Miller, let me mention three that feature consistently in his research. First, Miller’s recent research has focused on the idea of nationality; indeed, as a sort of nationalist he stresses the significance of nationality as a premise of democracy. Yet we may ask what kind of nationalist he is. Thus through his analyses of the principle of nationality, it is evident that his theory consistently depends on that very principle. The principle of nationality embodies the idea of national unity, entailing as it does elements such as plurality, difference, and reiteration. Here we see that Miller’s idea of nationality is different from the ‘monolith’ idea of nationality, which is popular with ‘conservative’ nationalists. It also differs from the ‘divided’ concept of nationality as supported by ‘radical’ multiculturalists. For Miller, a nation is a historical creature that respects its cultural heritage at the same time as it is changeable and open to the future. A nation can be re-defined any time by public and open deliberations. Miller himself says that nationality is created ‘by active processes of thought and interchange among the relevant body of people.’2 Here he declares that the difference between nationality and ethnicity is that between nationality’s familiarity with democracy, and that same nationality’s openness to the world. Second, Miller’s thinking is based on political theory. In recent years, nationalism has been studied mainly in the fields of history or sociology.3 Although Miller himself has said that his approach belongs to political theory, when he analyses the principle of nationality, he admits that he has learnt much from historians and sociologists. ‘But,’ he says, ‘my aim is different from theirs. I am not concerned to produce another “theory of nationalism” in the sense of a general explanation of why national identities should have arisen or of the functions that they serve. I am concerned to establish how to think about nationalism, what practical attitude to adopt towards it.’4 Here we can see that Miller’s theory of nationality is not empirical but normative. Finally, Miller is interested in the relation between nationality and social justice, and the second feature of his research (that it belongs to political theory) can be seen to be related to the third feature of his research. From Miller’s 1989 article,5 we note that his research interests have expanded from the social democratic theory of justice to the problem of nationality, even though his research method is still based on political theory. This article, which wonderfully evokes the liberal communitarian debate that raged in the 1980s suggests that social democrats who set much value on equality must pay attention to the conditions for communities to support redis-

2 3 4 5

David Miller, On Nationality, Oxford, 1997, 6 For recent studies, see, for instance, Liah Greenfeld, Nationalism: Five Roads to Modernity, Cambridge, Mass., 1992; Rogers Brubaker, Nationalism Reframed: Nationhood and the National Question in the New Europe, Cambridge, 1996. Miller (note 2), 4 David Miller, In What Sense Must Socialism be Communitarian?, Social Philosophy and Policy 6 (1989), 51–73

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tribution policy. In this respect, he seems to be somewhat on the side of the communitarians.6 Since it is impossible to establish equality if we cannot implement the redistribution policy, we need something of a sense of solidarity as promoted by people who make up a community. In fact, Miller claims that nationality depends on a sense of solidarity. He says that ‘[t]he welfare state – and indeed, programmes to protect minority rights – have always been national projects, justified on the basis that members of a community must protect one another and guarantee one another equal respect’.7 He also stresses the close connection between social justice and nationality, maintaining as he does that, especially in this era of globalization, we need to pay heed to the functions of nationality: for example, the function of promoting a sense of solidarity among a people; the function of promoting welfare policies for redistribution; the function of promoting a cultural environment that everyone can access, and so on. In the light of the foregoing, we may ask ourselves what is Miller’s conception of nationality. This I shall try to answer by summing up his central ideas on the subject as follows8: a. Nationalism appears for the first time in the transitional period between the pre-modern era and the modern era, and it is part of political community which is huge, anonymous, and highly fluid. Nationalism creates a shared identity and helps people to recognize that they are members of a community, which has its own character and culture from generation to generation. b. Yet national identity is not determined from the start. It develops through popular self-awareness and adapts to each new environment. The standard of membership of a particular society can be transformed, even without regard to the role of race or ethnicity in the maintenance of that standard. c. Nationality is an important component of personal identity, but need not, indeed must not, be exclusive. To belong to a nation is not to be excluded from subgroups such as rural community, religion, cultural group, or political association. Rather, the former is supported by the latter. d. By belonging to a nation, people undertake obligations to their fellow beings. This does not contradict the notion of having universal obligations to human beings outside the nation. In other words, what nationality requires is not a narrow-minded morality but a reasonable commitment to neighbourliness. e. All nations have rights to self-determination. Accordingly, a nation which hopes to protect its own right to self-determination cannot adopt a policy that denies the same rights to other nations. f. Political self-determination is important because, generally speaking, it is difficult to have rights to self-determination without political support. But we have 6

7 8

There is, however, no agreement as to the extent Miller is a communitarian, for his primary interest is in nationality. And though he is concerned with communities in some degree, they are discussed in relation to national unity. In this respect, Miller’s position is close to, for example, that of Dominique Schnapper, who advocates the French model of nationality. Dominique Schnapper, La communauté des citoyens: sur l’idée moderne de nation, Paris, 1994 Miller (note 2), 189 David Miller, Crooked Timber or Bent Twig?: Isaiah Berlin’s Nationalism, Political Studies 53 (2005)

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to stress the importance of the ‘moral’ reason of self-determination. This reason becomes a basis for democracy and social justice. Having considered the essence of Miller’s conception of nationality, we can now say that nationality for him is an important basis of reciprocity in so far as, together with democratic deliberation, it promotes autonomy, equality and a sense of solidarity. Yet, however important the idea of nationalitymay be, few of us act on this idea in our everyday lives. As is often suggested, we may become intermittently conscious of our nationality: for example, in times of war, territorial disputes and, to take more familiar examples, the Olympic Games or the football World Cup. So, there is a limit to the notion of nationality as a basis of reciprocity, that is, of reciprocity in the ethics of ordinary life. Furthermore, since national reciprocity does not easily spread around the world, it does not easily comply with the universality of human rights. Can we find some basis of reciprocity which is not limited to the ordinary lives of nations but has universal appeal? Basic human needs is one such possibility. 3. HUMAN RIGHTS

OR

CITIZENSHIP?

Basic human needs are the minimum condition for human beings to lead a ‘decent’ life. In other words, basic human needs are the fundamental condition without which it is impossible for us to lead a ‘decent’ life.9 What does a ‘decent’ life mean? It is the situation in which people are spared unjustified bodily pain, and opportunities of material and spiritual improvement are guaranteed. The list of basic human needs might include, for instance, food and water, clothes and shelter, physical safety, medical services, education, labour and pleasure, and freedoms of movement, conscience and expression. Since these needs are basic conditions for a ‘decent’ life, it might be relatively easy for us to consider this list as the foundation of reciprocal rights. But why human rights? Why not citizenship? How can we understand the relation between human rights and citizenship? The French sociologist Dominique Schnapper suggests that, in the ‘new situation’ such as the emergence of ‘European citizenship’, ‘the strategy of national, regional and European polity and the strategy of groups that have trans-national interests will be complexly combined. The new citizenship which appears in this configuration, institutions, and activities will be neither national nor cosmopolitan but

9

As is well known, Berlin refers to the conditions ‘without which human beings cannot be human beings any more’. These conditions are different from the concept of political liberties (such as negative and positive liberties). Berlin explains these conditions by referring to ideas such as decency and a basic liberty of choice. Decency and a basic liberty of choice are the conditions which must be minimally warranted so that people can be human beings. When political freedoms are denied (by authoritarian regime or despotism), people can still be human beings. However, if the minimal conditions are denied, there is a possibility that people cannot be human beings any more. Berlin explicitly calls this minimum condition ‘human rights’. However, he says: ‘Please do not ask me what decency is. Everybody knows what it is. Decency is decency.’ Cf. Ramin Jahanbegloo, Isaiah Berlin en toutes libertés, Paris, 1990.

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multiple’.10 Here we see that Schnapper envisages a kind of universal citizenship. In her view, it is not the logic of human rights but that of citizenship which can respond to the ‘new situation’. In the light of Schnapper’s theory of citizenship, we might then ask: what is the merit or value of Miller’s human rights theory? Let me now try to answer that question. As we saw, Miller’s basic strategy is to justify human rights on the basis of needs. When we attempt to compare human rights with citizenship, it is useful to distinguish between ‘basic’ needs and ‘social’ needs. It seems that, for Miller, ‘basic’ needs are the condition for the ‘decent’ life of all societies. ‘Social’ needs are the condition for the ‘civilized’ life of particular societies. The former corresponds to human rights, while the latter corresponds to citizenship rights. Miller says that ‘[m]ore generally, human rights that are common to all societies will be extended and given fuller expression in citizenship rights that vary from society to society (though with a lot of overlap in the case of societies that are similar in other respects). This also cannot fully account for the value of civil and political rights’.11 He also suggests as follows: Considered as a human right, [the right to political participation] is justified as a necessary protection for other rights that are more directly connected to needs. Unless they are subject to popular control, governments are liable to pursue policies that violate their subjects’ basic rights to subsistence, freedom of movement, etc., as many examples show. Considered as a right of citizenship, however, the right to participate takes on a new shape and a new significance.12

According to Miller, for any approach to human rights based on needs, it is important to distinguish between ‘basic’ needs and ‘social’ needs, and to clarify the division of roles between universalist human rights and particularist citizenship. Human rights and citizenship are based on different types of needs. Thus, it becomes the task of liberal politics to combine human rights and citizenship properly. There is another merit of the needs approach, namely, that it points up the community of rights as well as the community of obligation. We have rights only when we reciprocally acknowledge that others have ‘basic’ human needs. This principle of reciprocity obliges us to respect others. As Miller’s theory of human rights is based on the principle of reciprocity, it is also in some sense a theory of human obligation. This idea might lead to his emphasis on the importance of national responsibility. As we saw above, Miller sees the use of citizenship as based on ‘social’ needs to be not just as a means by which human rights based on ‘basic’ human needs are guaranteed. Rather, citizenship is an end in itself, and human rights and citizenship have a symbiotic relationship. For Schnapper, citizenship has a primary role, and she seems to suggest that human rights need not be ‘politicized’. By contrast, Miller sees both citizenship and human rights as ends in themselves, and the important thing for him being their coexistence and symbiosis. Generally speaking, in liberal societies, citizenship and human rights overlap in many respects. Thus, there is no great difference between the respective positions of Schnapper and Miller. Nevertheless, Miller stresses the significance of human rights because he thinks there are rights that cannot be reduced to citizenship. Miller’s 10 11 12

Dominique Schnapper, Qu’est-ce que la citoyenneté?, Paris, 2000, 253 David Miller, National Responsibility and Global Justice, Oxford, 2007, 196 Miller (note 11), 196–97

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idea seems to be based on a very British liberal tradition, that is, scepticism towards power. By contrast, in line with French Republican tradition, Schnapper thinks that citizenship can ensure both ‘social’ and ‘basic’ needs. Nevertheless, it seems that Schnapper and Miller share a common aim in their quest to realize a free and equal human community. Their theoretical disagreement might derive from the difference of the political cultures they champion: ‘citizens’ community’ (Schnapper) and ‘national community’ (Miller). It would become an important issue to compare these communities and to consider the relation between human rights and citizenship in each community. 4. TWO POLITICAL ISSUES Having considered Miller’s theory of human rights by reference to his Kobe Lecture and National Responsibility and Global Justice, let me now turn to two political issues which lead Miller to re-examine human rights: the issue of the political rights of people who are taken into custody, and the issue of how a liberal society should deal with terrorism. Although Miller himself does not give us clear answers to either issue, I shall try to summarize his argument. a. The first political issue is about the rights of people who are taken into custody. Miller’s aim in the Kobe lecture is not to deal directly with individual cases but to clarify the premises of the question: under what circumstances are human rights forfeited? Miller explains the condition of the forfeit of rights from the perspective of reciprocity. The human rights of people who destroy reciprocity are forfeited in accordance with the degree of destruction they have brought about. That means that, in such cases, most human rights are conditionally enjoyed. Now, according to this principle, how can we think about the issue of political rights of people who are taken into custody? It would appear from Miller’s principle that we can address the issue according to the degree of a prisoner’s destruction of reciprocity. It is difficult to think that the relatively minor destruction of reciprocity leads to the total forfeit of human rights. It might also be intuitively difficult to accept that the massive destruction of reciprocity in a certain area does not affect human rights (political rights) in other areas. It seems that we have to respond to this issue depending on the degree of individual destructions of human rights by prisoners. As the court of European Human Rights suggest, it is important to put the consistent legal principles to fortify political rights in place. b. One of the most difficult issues is how liberal society deals with suspected terrorists. Miller does not give an answer to this issue in his Kobe lecture. Michael Ignatieff, with his ‘lesser evil’ approach, supports the war (lesser evil) against terrorism (greater evil) within the constraints, and calls this ‘constitutional precommitment strategy’.13 Now, how can we take Miller’s position from the per13

Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror, Edinburgh, 2004. For Ignafieff ’s ‘pre-commitment strategy’, see Shinichiro Hama, Kachi Tagenron no Tetsugaku to Bouryoku toiu Aku’ [Value Pluralism and the Concept of Evil], The Doshisha Law Review 57 (2005).

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spective of reciprocity? According to Locke, the human rights of people who, ‘declaring by Word or Action, not a passionate and hasty, but a sedate settled Design, upon another Mans Life, puts him in a State of War with him against whom he has declared such an Intention’14 are forfeited. From this perspective, the rights of a suicide bomber who intentionally rushes into a crowd of people can be forfeited so that the terrorist might be taken down by the police, but this is justified only in an exceptional emergency. A terrorist is not a ‘beast’ but a ‘human being’, so he/she has the potential to re-enter ‘the community of rights’. As a human being, a terrorist has unconditional rights such as the right to fair trial, the right to life, and the right to avoidance of torture. Miller’s conclusion here comes from his human rights theory, where conditional rights and unconditional rights are combined. Miller ends his lecture with the following powerful remarks: ‘So within the standard roster of human rights whose continued possession, I have argued, should be seen as conditional on the right-holder reciprocally recognizing the rights of others, there is a smaller sub-set of rights, some procedural and some substantive, that cannot be forfeited no matter what’.15 There is no reason to think that Miller’s conclusion does not apply to terrorists. 5. THE APORIAS

OF

HUMAN RIGHTS

To what extent can Miller’s (and Locke’s) conception of human rights claim general validity? We can assert rights as long as we acknowledge that others have the same rights. This argument might be acceptable. In fact, if a thief or a terrorist destroys ‘the community of rights’ with ‘a precise and consistent intention’, there is nothing for it but to make them forfeit their rights to a certain degree. Now, I would like to consider different types of cases where people who do not destroy ‘the community of rights’ with ‘a precise and consistent intention’ are eliminated from the community. Here I am thinking about such people as ‘Jews’ at Auschwitz, Jean Genet’s ‘Palestinians’, Michel Foucault’s ‘abnormals’, Hannah Arendt’s ‘refugees’, Kenji Nakagami’s ‘people of roji (former outcastes)’, and Michiko Ishimure’s ‘sufferers of Minamata mercury poisoning’. Even though they do not destroy ‘the community of rights’ with their ‘precise and consistent intention’, they have forfeited their human rights in the community where there is no reciprocal relationship from the beginning. They are banished from ‘the community of rights’ by what Tocqueville and J. S. Mill describe as invisible ‘anonymous’ power – the power of the unidentified ‘structural’ system. But as well as a problem of human rights, there are the problems of disparity and poverty. As many theorists argue, we cannot solve these problems solely by our own efforts. Other factors such as cultural property, gender differences, talent and so on have to be taken into account. When we think of, say, theft or suicide bombing, it might be difficult to tell what is the consequence of ‘a precise and consistent intention’ and to what extent a ‘structural’ system is problematic. Furthermore, in 14 15

John Locke, Two Treatises of Government, student edition, ed. Peter Laslett, Cambridge, 1988, 278 David Miller, Are Human Rights Conditional?, this volume

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the cases mentioned above, even people who do not destroy the reciprocity with ‘a precise and consistent intention’ are removed from ‘the community of rights’ at birth. If human rights are not something to be earned but are something which must be respected just because human beings are human beings, the most urgent and crucial thing is to guarantee such rights.16 Can Miller’s (and Locke’s) theory of human rights as reciprocity answer the problems posed above? Or do we have to create a new theory which is different from the theory of human rights? It seems that those who are removed from ‘the community of rights’ at birth raise fundamental questions as to contemporary theory of human rights. Nevertheless, one lives in hope. As we know from history, despite many difficulties, we can see that human rights have been firmly fixed in people’s minds since the eighteenth century through the interaction between inter-subjective feelings as empathy. Indeed, the historian, Lynn Hunt, regards empathy the basis of the conception of human rights, as may be gathered from the following passage taken from her book, Inventing Human Rights: A History: The notion of human rights thus brought in its train a whole succession of evil twins. The call for universal, equal, and natural rights stimulated the growth of new and sometimes fanatical ideologies of difference. New modes for gaining empathetic understanding opened the way to a sensationalism of violence. The effort to dislodge cruelty from its legal, judicial, and religious moorings made it more accessible as an everyday tool of domination and dehumanization. The utterly dehumanizing crimes of the twentieth century only became conceivable once everyone could claim to be an equal member of the human family. Recognition of these dualities is essential for the future of human rights. Empathy has not been exhausted, as some have claimed. It has become a more powerful force for good than ever before. But the countervailing effect of violence, pain, and domination is also greater than ever before.17

Here I would like to suggest that it is important for the theory of human rights in the future to grasp the dialectic between human rights and their forfeiture through the history of human beings. There is, to be sure, no guarantee that we can ever bring about a world where human rights are perfectly ensured, especially since the concept of human rights is something of a utopian ideal. And yet, if we borrow Schnapper’s statements on citizenship, the concept of human rights is a ‘creatively utopian’ ideal. As Hunt suggests, the twenty-first century needs this kind of ‘creatively utopian’ ideal more than ever. How, then, are we to evaluate Miller’s ‘realistic utopia’18 in the light of our discussion above? If we depend on the principle of reciprocity, in reality, inalienable human rights might become alienable human rights. As a result, the ideal of inalienable human rights will be elevated to the ceremonial status of idolatry. In contrast to the concept of inalienability, Miller offers the concept of unconditionality of 16

17 18

However, as Hannah Arendt argues, if a person is placed in the situation where he/she is a mere human being, his/her rights are senseless. See Hannah Arendt, The Origins of Totalitarianism, New York, 2004, ch. 5. Such a person is very much like ‘a crab without its shell’ (Karl Mannheim). So, in order to prevent human rights from becoming ‘idolatry’, the argument about human rights must be connected with the argument about the public sphere which protects freedom of action and freedom of speech. Lynn Hunt, Inventing Human Rights: A History, New York, 2008, 212 Miller (note 11), 19. Miller suggests that Rawls describes his theory of international justice as a ‘realistic utopia’. Cf. John Rawls, The Law of Peoples, Cambridge, Mass., 1999, 11–12.

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human rights. It is an ultimate truth about human rights that they still remain, even if we do away with reciprocity. All human rights are conditional on our acknowledging the notion of reciprocity, but there remain some formal and substantive human rights which must be assured unconditionally. Such unconditional human rights are needed to set a limit to the conditionality of human rights. For Miller, this unconditionality finally defines the inalienability of human rights. Katsu Tomisawa Faculty of Law, Doshisha University Karasuma Higashi-iru, Imadegawa-dori, Kamigyo-ku, Kyoto 602-8580 Japan

HIROHIDE TAKIKAWA, TOKYO (RIKKYO UNIVERSITY) ARE HUMAN RIGHTS FORFEITABLE?* 1. INTRODUCTION Human rights are not unconditional, so it is officially acknowledged. Article 29.2 of The Universal Declaration of Human Rights states: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”. Here human rights can sometimes be limited by the rights of others or by public welfare. We can easily find similar articles in documents of international human rights law1 as well as in the constitutions of individual states.2 In his lecture provocatively entitled “Are Human Rights Conditional?”, David Miller urges us to rethink an important issue about the human rights of prisoners, enemy combatants and terrorists, an issue that has not necessarily been fully explored. The basic question is this: Which human rights may be restricted, and under what circumstances? It is timely to consider this question because developed countries currently seem to be treading the same path of ‘penal populism.’3 As public consciousness of safety and security rises, so the extent and intensity of punishment have also risen. It is ironic that in the fight against crime and terror to maintain safety, human

* 1

2

3

This research was funded by Grants-in-Aid for Scientific Research from Japan Society for the Promotion of Science (JSPS). Article 4 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) declares that “the States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”; Article 17 of the European Convention on Human Rights (ECHR) reads that “nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” Michael J. Perry convincingly shows that “no one argues that every human right … is absolute” by drawing a number of examples from international legal documents. Michael J. Perry, The Idea of Human Rights: Four Inquiries, Oxford, 1998, 88–95 Article 2.2 of Basic Law for the Federal Republic of Germany says: “Everybody has the right to self-fulfillment in so far as they do not violate the rights of others or offend against the constitutional order or morality”; Article 13 of The Constitution of Japan proclaims: “All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.” Nicola Lacey, The Prisoner’s Dilemma: Political Economy and Punishment in Contemporary Democracies, Cambridge, 2008

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rights are easily curtailed4. Miller tries to find reasonable grounds on which we may imprison criminals but may not torture terrorists. 2. HUMAN

RIGHTS AND THE PRINCIPLE OF FORFEITURE

We will begin by briefly examining Miller’s human rights theory. In his National Responsibility and Global Justice, he describes human rights by appealing to the idea of basic human needs.5 The list of such needs includes: “food and water, clothing and shelter, physical security, health care, education, work and leisure, freedoms of movement, conscience, and expression.”6 Basic needs are in contrast with societal needs. Miller explains that “[t]he former is to be seen as ‘the conditions for a decent life in any society’, and the latter as ‘the more expansive set of requirements for a decent life in the particular society to which a person belongs.’”7 Basic needs are used to justify human rights, and societal needs are taken into consideration in grounding rights of citizenship. While societal needs depend on social contexts, basic needs are to be understood by reference to “the idea of a decent human life”, whose content is to be confirmed by an objective approach. This approach includes the notion of “core human activities”, which are supposed to be “described as universal.”8 Human rights are universal: all human beings have the same set of human rights because basic needs are universal. It is certain that prisoners and terrorists have the same set of basic human needs as we do. This might imply that they have the same set of unconditional human rights as we do. But Miller notes that human needs do not provide a sufficient ground for human rights, and suggests several ways in which practical considerations may place limits on the derivation of rights from needs.9 Miller mentions four of them: human capability, the nature of needs, human rights of others, and resource scarcities. When discussing the conditionality of the human rights of prisoners, Miller introduces a new case in which human needs are not sufficient for human rights: reciprocity. The underlying idea, according to Miller, is that “human rights are founded in reciprocity: we can claim them for ourselves only if we are prepared to respect them in others.”10 Conversely, if we do not respect others’ human rights, we 4 5

6 7 8 9 10

Wiltor Osiatynvski, Human Rights and Their Limits, Cambridge; New York, 2009, 46–51 David Miller, National Responsibility and Global Justice, Oxford, 2007, 179. In his recent paper, Miller explains human rights by saying that “[c]orresponding to these [basic human] needs we have a set of human rights.” David Miller, National Responsibility and Global Justice, in: Nationalism and Global Justice: David Miller and His Critics, ed. De Schutter, Helder, and Ronald Tinnevent, Oxon, 2011, 22. Leif Wenar complains that Miller has not shown how his account of human basic needs grounds universal duties to secure human rights. Leif Wenar, Human Rights and Equality in the Work of David Miller, in: Nationalism and Global Justice: David Miller and His Critics, 34. Miller answers by invoking moral intuitions about a ‘starving man’ example. David Miller, A Response, in: Nationalism and Global Justice: David Miller and His Critics, 191 Miller, National Responsibility and Global Justice (note 5), 184 Ibid., 182 Ibid., 184 Ibid., 185–194 Cited from the original version of “Are Human Rights Conditional?” delivered as the tenth Kobe Lecture at Doshisha University on July 9, 2011.

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cannot claim our own human rights. Criminals lose their human rights by violating the human rights of others. This argument for punishment, based as it is on the principle of forfeiture, has been supported by a number of modern scholars, and its historical origin can be traced back through Hume11 to Locke.12 The principle of forfeiture states that if P violates Q’s right, then P forfeits P’s own right.13 We must carefully investigate how to understand the principle of forfeiture because it has raised a number of problems. I shall separate them into three aspects: content, condition, and scope. 3. THE

CONTENT PROBLEM:

WHAT

IS FORFEITED?

The first problem concerns what kind of rights a person forfeits. A strong version of the principle of forfeiture claims that if P violates Q’s right, then P forfeits all of P’s rights. In other words, P loses moral standing, that is, membership in our moral community. Wrongdoers are banished from the moral space, as if they were sent into exile.14 Locke might say that they go out of political society back into the state of war. This strong version has two inappropriate implications. First, it leads to the idea that even shoplifters should forfeit all their rights, including the right to life. Such a conclusion is probably too severe to accept. Second, it implies that aggressors lose not only their rights but also their duties; prisoners have no duties to obey laws and rules. A prison is therefore seen as a savage world where no law applies and only force prevails. To avoid this unacceptable conclusion, Miller tries to show that 11

12

13 14

Hume writes: “When any man, even in political society, renders himself, by his crimes, obnoxious to the public, he is punished by the laws in his goods and person; that is, the ordinary rules of justice are, with regard to him, suspended for a moment, and it becomes equitable to inflict on him, for the benefit of society, what, otherwise, he could not suffer without wrong or injury.” David Hume, An Enquiry Concerning the Principles of Morals, ed. Tom L. Beauchamp, Oxford; New York, 1998, 86 It is well-known that many of Locke’s positions on punishment have been borrowed from Grotius. See A. John Simmons, Locke and the Right to Punish, Philosophy and Public Affairs 20 (1991), 134 (n. 27). However, the forfeiture argument does not seem attributable to Grotius. Grotius states that “he, who has offended, naturally brings himself into such a Condition, as that he may justly be punished.” Hugo Grotius, The Rights of War and Peace, ed. Richard Tuck, Indianapolis, 2005, 996. Here it seems not so much that he might perhaps support the forfeiture argument, but rather that he regards the relation between crime and punishment as the relation between a contract and a debt. He writes: “Punishment was due to a Delinquent in the same manner, that a Debt is due upon a Contract.” Ibid., 952. When a person commits a crime, it is not that he forfeits his own right, but that he assumes a new duty. This might be called the contract (or consent) argument. This means that the forfeiture argument begins with Locke. Christopher W. Morris claims that the forfeiture view can be traced back to Hobbes, citing as he does Hobbes’s remark in Leviathan: “the subjects did not give the Sovereign that right [to punish]; but only in laying down theirs.” Christopher W. Morris, Punishment and Loss of Moral Standing, Canadian Journal of Philosophy 21 (1991), 63 (n. 21). But Hobbes here states that everyone relinquishes his right to punish so that the right is left only to the sovereign, but not that criminals forfeit their right to liberty. Thomas Hobbes, Leviathan, ed. Richard Tuck, Cambridge; New York, 1996, 214. Hobbes thus does not hold the forfeiture argument. David Boonin, The Problem of Punishment, New York, 2008, 105 Morris (note 12), 69

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Locke, in fact, supports a weaker version, although the latter often describes wrongdoers as ‘Beasts.’15 It would be useful to distinguish between the two senses of “weaker”: weaker in time and weaker in content. Hume appeals to a ‘weaker in time’ version when he writes that “the ordinary rules of justice are, with regard to him, suspended for a moment”16, though without providing grounds for such an assertion. Miller’s important contribution is to demonstrate that the forfeiture of rights is only temporary because it would be impossible to prove with a sufficient degree of certainty that a person would be “incapable of changing in such a way that he or she could re-enter the realm of rights on terms of reciprocity.”17 The principle of forfeiture can also be understood as ‘weaker in content’. Alan H. Goldman, for example, holds an equivalent version of the principle. If P violates Q’s rights, then P forfeits “just those rights that one violates (or an equivalent set).”18 This equivalent version seems convincing because it matches the ius talionis which Kant once called “the only a priori determining idea as the principle of criminal law.”19 Other versions would bring either too severe or too lenient a punishment. But the equivalent version invites a serious objection. If P tortures Q, it follows from the principle of forfeiture that P forfeits the same right, that is, the right not to be tortured. To avoid this conclusion, defenders of the equivalent version might reply that what P forfeits is not P’s right not to be tortured, but an equivalent set of P’s rights. However, this reply fails because “if a given right really is equivalent to another, then if it is unacceptable to deprive someone of one right, it must be equally unacceptable to deprive him of the other.”20 If the right not to be tortured is equivalent to the right to freedom of movement, say, for ten years, then it must be impermissible to imprison a torturer for ten years. Miller revises the equivalent version of the principle of forfeiture in two ways to meet this objection. First, the right not to be tortured cannot be forfeited. Miller claims that the right not to be tortured belongs to the category of unconditional rights because torture undermines one’s “personhood”, that is, the “very capacity to act as rights-bearing and rights-recognizing individual.”21 Even a torturer has the right not to be tortured. Second, the principle of forfeiture is independent of the principle of retribution. The former opens up the way for punishment; the latter supplies the reason for punishing.22 That is to say, the former shows that punishment in general is permissible; the latter that a certain amount of punishment is required. The equivalent version is thus just one option among others. Since the principle of forfeiture does not necessarily include the principle of retribution, pro15 16 17 18 19 20 21 22

John Locke, Two Treatises of Government, ed. Peter Laslett, Cambridge; New York, 1988, 383 Hume (note 11), 86 (italics mine) David Miller, Are Human Rights conditional?, this volume, 31 Alan H. Goldman, The Paradox of Punishment, Philosophy and Public Affairs 9 (1979), 45. Murray N. Rothbard also supports an equivalent version. Murray N. Rothbard, The Ethics of Liberty, New York and London, 1998, 80 Immanuel Kant, Die Metaphysik der Sitten, Werke hrsg. von Wilhelm Weischedel, Frankfurt am Main, 1993, VI 363; Kant, The Metaphysic of Morals, Cambridge; New York, 1996, 130 Boonin (note 13), 111 Miller (note 17), 31 Morris (note 12), 68

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ponents of the principle of forfeiture might have a sufficient reason to support other versions of it. Let us focus on the first point. The principle of forfeiture has been criticized because it leads to such an unacceptable conclusion as, for example, “a judge who violates a defendant’s right to a fair trial does not forfeit her own right to a fair trial.”23 Miller defends the principle of forfeiture by insisting that some human rights are unconditional, though others are to be treated as conditional because they fall under the requirements of reciprocity. Such unconditional human rights, according to Miller, include certain procedural rights, the right to life, and the right not to be tortured.24 Does this list exclude other rights? Is the right to religious freedom conditional? Are we allowed to use physical force to convert a religious fundamentalist terrorist? Moreover, why may the right not to be confined be forfeited, while the right not to be tortured may not? Miller needs to draw a clear line between conditional and unconditional human rights. As we have seen, Miller offers us a convincing reason why the right to life cannot be forfeited. But Miller needs to show whether there is a common reason for different kinds of unconditional rights, and if there is, then what that might be. Miller points up “the right to be treated as a human person” in order to explain that some human rights must be understood as unconditional.25 To understand what the term ‘right’ means, it would be useful to compare it with “the right to have rights”, as Arendt once put it.26 Seyla Benhabib, following Arendt, makes an interesting analysis of this notion. The first use of ‘right’ in the phrase evokes a moral imperative: it is a moral claim against humanity itself. The second use of ‘right’ in the phrase indicates a juridico-civil claim. This is usually referred to as “civil and political rights”, which “generate reciprocal obligations among consociates, that is, among those who are already recognized as members of a legal community.”27 The distinction between the moral and the juridico-civil seems to overlap with the distinction between the humane and the social that Miller makes in order to explain the requirements of cosmopolitanism in the world of nationalism. The concept ‘the social’, especially in the sense of nationality, has played a pivotal role in Miller’s political philosophy since his first book, Social Justice.28 Miller emphasizes that social justice assumes “a bounded society with a determinate membership,”29 claiming that this represents a very significant difference, and one sufficient to drive “a wedge between social and global justice.”30 Thus understood, Arendt’s (or Benhabib’s) “right to have rights” amounts to a human right to be treated as a citizen in a certain country, which is in contrast with Miller’s right to be treated as a human person. The former concerns a status in a legal 23 24 25 26 27 28 29 30

John Braithwaite and Philip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice, Oxford, 1990, 169 Miller (note 17), 30–31 Cited from the original version of “Are Human Rights Conditional?” delivered as the tenth Kobe Lecture at Doshisha University on July 9, 2011. Hannah Arendt, The Origins of Totalitarianism, New Edition, New York, 1966, 296 Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens, Cambridge; New York, 2004, 56–58 David Miller, Social Justice, Oxford, 1976 David Miller, Principles of Social Justice, Cambridge, MA; London, 1999, 4 Miller, National Responsibility and Global Justice (note 5), 16

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or national community; the latter a status within or even outside the community. ‘Outsiders’, such as refugees and exiles, enjoy the right to be treated as human persons anywhere in the world because they belong to the human community, even though they stay away from their own nation state. The right to be treated as a human person is unconditional; it does not come under the requirements of reciprocity. Even if P violates Q’s right to be treated as a human person by exploiting Q in servitude, P still retains P’s own right. It is a gift, not something earned or traded in. This unconditional right, though fundamental, is not in accord with the reciprocitybased account of human rights. It is true that a principle allows exceptions, but such important exceptions would cast doubt upon the value of that principle. Miller’s needs-based account of human rights might help to explain the division between conditional and unconditional rights. It might show that the latter derives from more essential needs, or needs that are incommensurable with other values. For example, the right to life is unconditional because the need for life is more fundamental than the need for freedom of movement. But it is at least doubtful that the need for a fair trial is more essential than the need for food. Moreover, it is far from clear how the needs-based account of human rights fits with the reciprocitybased account. A terrorist’s need for food is still basic and urgent even when he or she shows non-recognition of the rights of others. Miller might take an ‘anti-monist’ position to defend the division between conditional and unconditional rights. Monism insists that the same principle should apply to different types of entities. Thomas Nagel employs anti-monism to support his claim that justice applies only to a collectively imposed social framework, that is, the state, but not to the global community.31 Anti-monism could claim that unconditional human rights exist in the human community, from which nobody can withdraw; conditional human rights exist in ‘a reciprocal human community’, which is different from a particular society which grants rights of citizenship. The nature of a reciprocal human community remains to be clarified. 4. THE

CONDITION PROBLEM:

WHEN

ARE RIGHTS FORFEITED?

The second problem has to do with the conditions under which some rights are forfeited. When does P forfeit some of P’s own rights? A natural answer is: when P violates somebody else’s right. However, this answer presupposes the idea of selfdefense: P’s rights are outweighed by Q’s right of self-defense when P poses an immediate threat to Q. Therefore, it runs into difficulties because the notion of selfdefense cannot justify punishment when threats cease to be imminent. Miller offers an intricate revision of the answer: P forfeits P’s rights when P “act[s] in ways that reveal a settled disposition not to recognize the human rights of others.”32 I will refer to this concept as “act in such ways” in what follows. Miller’s revision, however, faces two difficulties. First, it is not that P would forfeit P’s right, even when P does not act in such ways. For instance, when P uses illegal drugs, P does not act in such ways (even though it might perhaps be that P 31 32

Thomas Nagel, The Problem of Global Justice, Philosophy and Public Affairs 33 (2005), 140 Miller (note 17), 33

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infringes P’s personhood), but it is permissible to imprison P. Not all crimes are against an individual; some crimes are against society, the state, and even humanity. The principle of forfeiture should be formulated in such a way that it focuses on a violation of the law, but not on that of the rights of others. This comes closer to Locke’s version of the forfeiture argument, namely, that the aggressor “becomes dangerous to Mankind” “by transgressing the Law of Nature.”33 The aggressor violates the law as well as his victim’s right.34 The principle of forfeiture should be revised as follows: P forfeits P’s rights when P acts in ways that (reveal a settled disposition to) infringe a law.35 Second, and more important, even if it is clear that P acts in such ways, it is not permissible to violate P’s right “before trial and conviction.”36 Miller is certainly being careful when he remarks that a procedural right is unconditional and that it is not permissible to punish P without trial and conviction. But his reply misses the point. When we imprison P without trial and conviction, we violate not only P’s procedural rights but also P’s right to freedom of movement. We ought to be punished for confining P as well as for depriving P of a fair trial. That is to say, P holds and never forfeits P’s right to freedom of movement before trial and conviction. This casts doubt on the principle of forfeiture itself. In order to rescue the principle, Miller might add the ‘after trial and conviction’ clause to it. However, as we shall see in the next section, P still retains the right not to be confined by Q or a third party, even after trial and conviction. 5. THE

SCOPE PROBLEM:

AGAINST

WHOM ARE RIGHTS FORFEITED?

The third problem is about whether the forfeiture of rights is universal or specifically in relation to the victim of an aggression. Defenders of the principle of forfeiture usually maintain that everyone is released from their normal obligations towards a wrongdoer. Locke writes that “he [the aggressor] renders himself liable to be destroied by the injur’d person and the rest of mankind,”37 and also that “every Man in the State of Nature, has a Power to kill a Murderer.”38 Miller supports Locke’s 33 34 35 36 37 38

Locke (note 15), 272 This amounts to the conclusion that “every Man hath a Right to punish the Offender, and be Executioner of the Law of Nature”, which Locke admits “will seem a very strange Doctrine.” Ibid., 272–273 As I argue later in my Addendum, this revision will lead to the rejection of the principle of forfeiture. Judith Jarvis Thomson, Self-Defense and Rights, in: Rights, Restitution, and Risk, Cambridge, MA, 1986, 35. Locke (note 15), 383. Ibid., 275. In some passages, Locke seems to move in the opposite direction. Thus he writes that “[w]hosoever uses force without Right … puts himself into a state of War with those, against whom he so uses it” (Ibid., 419), and that “it is the brutal force the Aggressor has used, that gives his Adversary a right to take away his Life” (Ibid., 390). Here Locke seems to maintain that the forfeiture of rights is not universal but specific to the person aggressed against. But this would be a wrong interpretation of Locke’s argument. Lock insists that any crime violates not only a victim’s right but also the law of nature, as we have seen above. When the aggressor violates his victim’s right, everyone becomes ‘his Adversary’ and gains the right to punish him.

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position on this matter. He carefully investigates the universality of forfeiture, and concludes that the fact that P kills Q and recognizes the right of everyone else might only affect “the degree to which his rights have been forfeited.”39 Not only the victim but also everyone else is released from their duties to the aggressor to some degree. This universal version of the principle of forfeiture implies that anyone may confine wrongdoers and deprive them of their liberty to a certain degree. It might perhaps be an interesting position, but it needs much justification because it is usually thought that only the state has the right to confine criminals. Miller might again appeal to procedural rights to meet that objection. Procedural rights cannot be forfeited. Even a serial murderer has the right to a fair trial. Private penalty by a third party violates the criminal’s procedural rights. But this reply misses the point. Private penalty by a third party is unjust not only because it violates procedural rights but also because it violates substantive rights such as the right to freedom of movement. He who kills a murderer must be punished, not as a procedural rights violator but as a murderer himself. A defender of the principle of forfeiture might respond by using the distinction between ius in rem and ius in personam. When P steals Q’s wallet, P forfeits P’s rights against Q, but not P’s rights against the world. Everyone else still retains correlative duties towards P and may not violate P’s rights. But the forfeiture in personam amounts to private retaliation by the victim.40 It is against our intuition that Q may not steal P’s wallet, even when P steals Q’s. We can now conclude that the forfeiture of rights is neither universal nor specific. Even if P commits a crime, P does not forfeit P’s rights against anyone, including P’s victim. 6. CONCLUSION The basic question Miller invites us to reconsider is this: Which human rights may be restricted, and under what circumstances? The principle of forfeiture seems to provide a promising approach and has been understood in several ways. Miller sees difficulties in the strong version and the equivalent version of the principle of forfeiture, and offers a restricted version of it to justify reasonable conclusions about how to treat prisoners and terrorists. As regards the content problem, Miller admits important exceptions to unconditional human rights, even though he still faces the condition problem and the scope problem. We can now conclude that the principle of forfeiture collapses under closer scrutiny. Then the question arises: Are we not allowed to imprison criminals? Of course we are. But the reason is rather that the criminal’s human rights are overridden by the rights of others or through public welfare as shown in Article 29 of the UDHR. A right which can be overridden continues to exist even when it has been overridden; it merely does not obligate us to recognize it in such cases. In other words, a pris39 40

Miller (note 17), 28 Warren Quinn, The Right to Threaten and the Right to Punish, Philosophy and Public Affairs 14 (1985), 332

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oner’s human rights still have moral weight; they are overridden by some considerations, but not by others. Miller raises an objection by suggesting that the basic point of human rights is to protect a person against being used as a mere instrument of public utility.41 It is true that rights are often taken as “a trump”, but they are not indefeasible against all considerations. It is officially and widely acknowledged that human rights are sometimes overridden by the human rights of others and by public welfare. While it is important to take rights seriously as a matter of principle, we can easily find many exceptions in all kinds of human rights documents. For example, the right to free movement may be subject to restrictions by law necessary “to protect national security, public order, public health or morals or the rights and freedoms of others” (The United Nations International Covenant on Civil and Political Rights, Article 12–3). These exceptions do not, however, detract from the significance of human rights. The fundamental point is that punishment is a legal concept: it is coercion under the authority of a law.42 In other words, there is no punishment without a law (nulla poena sine lege). We can justify punishment not in the state where rights are forfeited, but in a juridical state.43 Miller could abandon the principle of forfeiture and accept the principle of overriding as being completely consistent with his other positions. ADDENDUM (This section contains my reply to the revised and expanded edition of Miller’s Kobe Lecture included in this volume.) RECIPROCITY AND HUMAN DIGNITY In section 3 of my essay, I write that “Miller needs to draw a clear line between conditional and unconditional human rights.” In response to my comment, Miller now declares that the distinction between unconditional rights and conditional rights is not based on the importance of the rights themselves. It is not that unconditional rights are more basic or more important than conditional rights. Rather, the distinction, he argues, “arises from the idea of forfeiture itself.”44 To put it precisely, a person may forfeit his human right only when “there is good and reliable evidence that that person in question has forfeited it”; a person may also forfeit his right because that person “displays sufficient disrespect for the right of others.”45 As I show in section 2, Miller takes the needs-based approach, whereby basic needs are used to justify human rights. Miller has now made it clear that the distinction between unconditional rights and conditional rights does not refer to the idea of human needs. 41 42 43 44 45

Miller (note 17), 22 B. Sharon Byrd and Joachim Hruschka, Kant’s Doctrine of Right: A Commentary, Cambridge; New York, 2010, 271 Immanuel Kant, Die Metaphysik der Sitten (note 19) Miller (note 17), 30 Ibid., 30

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Rather, it is based on the exceptions to the needs-based approach; in other words, the idea of reciprocity. So the question is whether Miller succeeds in explaining various kinds of unconditional rights by appealing only to the idea of forfeiture. I doubt whether he does. First, Miller introduces the distinction between procedural and substantive unconditional rights,46 which, I must repeat, is misleading. Suppose that it is reliably clear that P murdered Q before trial and conviction because P intentionally killed Q in public and under surveillance cameras. Miller explains the fact that we are not allowed to imprison P at this stage by claiming that, while P may forfeit his substantive rights, he still retains his procedural rights. However, this is not a precise way of describing the case. P never forfeits his substantive rights before the procedure. Someone who restricts P’s freedom of movement must be punished not only as a procedural rights violator but also as an illegal arrester. Second, when Miller tries to defend the right to life as an unconditional right, he asserts that “[w]e owe every human being, no matter what he or she has done, the opportunity to show that he or she can after all re-enter the community of rights.”47 What Miller here relies on is not the idea of reciprocity because it would probably permit us to kill those who kill other persons. We cannot therefore understand why we owe every human being such an opportunity unless we presume that we should respect his or her personhood. Third, in discussing the right not to be tortured, he explicitly asserts that torture involves “a direct assault on the victim’s personhood.”48 It seems that Miller compromises his belief in the idea of reciprocity when he repeatedly talks of “personhood” or “human dignity”. He reluctantly admits that an appeal to human dignity may help us to understand that certain ways of treating human beings are forbidden, no matter what they have done.49 But he attempts to find some way to defend his position by saying that “an appeal to dignity works better as a signal than as an explanation of why certain rights are unconditional.”50 However, this distinction between a signal and an explanation is hard to understand. Some rights are unconditional because violating them involves undermining human dignity. Here the idea of human dignity explains why some rights are unconditional. It is important to note that the idea of reciprocity may be in conflict with the idea of human dignity. Indeed, the idea of reciprocity implies that I respect your rights only in so far as you respect my rights; I may violate your rights once you have violated my rights. On the other hand, the idea of human dignity requires that I respect your personhood, no matter what you have done to me; I must not violate your rights in any situation. Miller’s appeal to human dignity thus seriously impairs his forfeiture view as based on the idea of reciprocity. We should conclude that the distinction between unconditional and conditional rights arises not from the idea of reciprocity but from the idea of human dignity.

46 47 48 49 50

Ibid., 30 Ibid., 31 Ibid., 31 Ibid., 32 Ibid., 32, note 43

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RE-ENTRY Miller clearly expresses that those who have violated others’ rights can “re-enter the community of rights”51 or “rejoin the human community as an equal participant.”52 We should pay attention to the prefix “re.” Who can re-enter the community? The answer is: only those who once entered and later exited it. In writing “re-enter,” Miller implicitly admits that those who have violated the rights of others have exited the human community. Where do they go when they have left the human community? A natural answer would be “to the state of nature”, in which they lose their rights for lack of reciprocity. But Miller eloquently argues that they never move to the wilderness. They must not be treated as wild animals or “Beasts”, for they are after all still human beings. They therefore belong to some place which is neither the human community nor the state of nature. We might call it “the state of half nature.” On the one hand, a stronger version of the principle of forfeiture holds that violators of others’ rights are reduced to the state of nature, in which they lose all their rights. On the other hand, a weaker version maintains that they are still suspended in the state of half nature, in which they lose only a limited number of their rights, while still keeping their unconditional rights. This interpretation of Miller’s argument unfortunately contradicts his explicit statements. As the above-cited phrases indicate, those who have violated others’ rights exited “the community of rights” and belong to the human community as an unequal participant. Their moral status is what we might call “second class”, whereby the idea of human dignity has evaporated; and because they are “second-class” members, they are not treated with full human dignity. Here we are once again led to the conclusion that the forfeiture view is in tension with the idea of human dignity. Miller would reply this way. (1) Because he has deliberately violated others’ rights, some of his own rights may be forfeited. (2) However, because he remains a human being, we may not do certain things to him.53 I accept the second statement. My complaint is about the first one. The principle of forfeiture, if expressed clearly, is in conflict with the second statement; and, if stated vaguely, it is too ambiguous to defend a severe treatment of rights violators. The principle of forfeiture in fact plays no role when we explain our practice. FORFEITURE VS. CANCELLATION Miller attempts to vindicate his view not only by defending his approach but also by attacking alternative views, including mine, namely, that “a criminal’s human rights are overridden by the rights of others.” Miller asserts that my view can be defended only when it adopts a certain form of rights-consequentialism, and that it is not necessary to take rights away from those who have committed crimes to protect the rights of others.54 51 52 53 54

Ibid., 31 (italics mine) Ibid., 32 (italics mine) Ibid., 32–33 Ibid., 23

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Some might think that there is little difference between Miller’s forfeiture view and my approach. Miller’s argument consists of three elements: (M1) Every human being has human rights. (M2) If someone violates others’ rights, he loses his own rights. (M3) Some rights are unconditional. My approach, which might be called the cancellation approach, also has three ingredients: (T1) Every human being has human rights. (T2) Someone’s rights may be overridden by the rights of others. (T3) Some rights are unconditional. Thus stated, we can easily find that the difference between these two sets lies only in the second proposition, and, as some might say, in the ways of explaining the matter. Still, the difference is substantial. First, the forfeiture view asserts that a person forfeits his own rights only when he violates the rights of others. In other words, if a person infringes a law but does not violate the rights of others, he still holds his rights. This view cannot explain the case of a user of illegal drugs. At the same time, the forfeiture view claims that a person is always bound to lose his own rights when he violates the rights of others. This view cannot justify the unconditionality of procedural rights. To avoid these unsatisfactory conclusions, Miller adds several substantial exceptions to the principle of forfeiture, and therefore complicates his argument as a whole. My cancellation approach is much more straightforward and consistent than the forfeiture view. Second, the notion of being overridden is a more suitable means of explaining punishment than the notion of forfeiture. A prisoner’s rights are never forfeited; they are merely overridden. One major difference between them lies in the fact that those who are punished still belong to our legal world in a complete sense. All we need to justify punishment is the dichotomy between the state of nature and the juridical state, which is based on the argument Kant puts forward in his book, The Metaphysic of Morals.55 Once we have gone out of the state of nature and entered the juridical state, we should treat each other as moral persons, no matter what someone may have done to us. It is not necessary to appeal to such an ambiguous state as the state of half nature in order to explain why we may imprison, but not torture, criminals. In the realm of rights, their rights may be overridden by some considerations, while their human dignity may not be damaged in the process. I understand that we are entitled to punish those who violate a law as an expression of public censure, though I do not offer my own comprehensive theory of punishment here.56 Punishment as an expression of public censure is totally different from revenge as a measure of private censure. Punishment is entirely legal; it is rightly imposed only in a juridical state. While victims might imprison those who 55 56

Immanuel Kant, Die Metaphysik der Sitten (note 19) I advance an expressivist view of punishment in Sekinin no Imi to Seido [The Significance of Responsibility], Tokyo, 2003. As a classical and typical defense of expressivism, see Joel Feinberg, Expressive Function of Punishment, in: Doing and Deserving; Essays in The Theory of Responsibility, Princeton, 1970; Andrew von Hirsch, Censure and Sanctions, Oxford 1993; R. A. Duff, Punishment, Communication, and Community, Oxford, 2001.

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violate the natural rights of others in the state of nature, such imprisonment is not called punishment because it does not fall within the constraints of the idea of law. Miller writes that forfeiting rights “does not entail that they [certain forms of punishment] are required, or that justice is served by imposing them.”57 However, punishment as public censure is required in order to make up for the damage done to the juridical state by any form of aggression. In other word, we have a moral duty to punish the violator. This is now well-known as a natural duty of justice, which is a necessary means of preserving the juridical state. This expressivist view comes by way of reply to Miller’s objection to the approach of overriding. Miller asserts that “it is not necessary to impose severe restrictions on the prisoner’s freedom of movement to protect the rights of others.”58 However, my expressivist approach to punishment claims that it is necessary to imprison the offender as an expression of public censure. It is important to note that public censure usually requires more than mere verbal blaming; it is necessary to deprive the offender of his freedom of movement according to our penal convention. And though it is possible to imagine a world in which public censure was confined to blame alone, it is still a long way from the world as we know it today. Hirohide Takikawa Faculty of Law and Politics Rikkyo University Tokyo, 171-8501 Japan

57 58

Miller (note 17), 26 Ibid., 24 (italics Miller’s own)

PART 2 GLOBAL JUSTICE

AND

NATIONAL RESPONSIBILITY

TATSUO INOUE, TOKYO (UNIVERSITY OF TOKYO) MILLER’S TWO SOULS: WHAT DOES THEIR “COHABITATION” END

IN?

1. INTRODUCTION In his book National Responsibility and Global Justice,1 David Miller reveals what the Germans would call zwei Zeelen, i. e. two split souls, concerning the issues of the relationships between national responsibility and global justice. One soul, his nationalist soul as I would call it, affirms that the members of each nation have special obligations of mutual care and support on the basis of their shared national identity. It also urges that they should bear collective self-responsibility for the consequences of their own collective practice, including their economic situation that their practice has generated. The other soul, which might be called his globalist soul, holds that all human beings have the right to a minimum level of decent life as one of those rights that we are all obliged to protect beyond national borders. There is a tension between his two moral aspirations. They seem to have an uneasy “cohabitation”2 within his theory. He attempts to show that his two souls can be integrated in a coherent way. I should like to comment on three issues that must be clarified to judge whether he has succeeded in his attempt. First, what does his notion of the justice gap amount to? Second, has he avoided the fallacy of what Thomas Pogge calls explanatory nationalism? Third, is he fair in distributing the burden of proof in the debates on the causal factors of world poverty? I shall try to answer these three questions below. 2. THE NORMATIVE NET VALUE

OF THE JUSTICE

GAP

There is some ambiguity about the way in which Miller accommodates the tension between the two sets of normative requirements that his two souls are committed to. Is one of them given priority over the other when they come into conflict? If so, which one is prioritized? Or is it the case that neither has priority and that, therefore, some compromise must be worked out between the two? If so, is there any guiding principle for a fair compromise that leads us to give due consideration and due weight to each? Or does such a compromise depend on political negotiation processes whereby the outcomes are more or less influenced by the inequality of political resources and negotiation power between the relevant parties, especially between developing and developed countries? If you read all the chapters of Miller’s book except the last one, you may well be led to think that his answer to these questions is based on his globalist request to 1 2

David Miller, National Responsibility and Global Justice, Oxford, 2007 Here I use the term “cohabitation” just in the same metaphoric sense in which it is used in politics to refer to the alliance of conflicting forces such as the coalition of the conservatives led by Prime Minister Chirac and the socialists led by President Mitterrand that appeared in France in 1986.

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protect beyond national borders the human right to a decent minimum level of life; and that this request is a normative constraint upon, or a prerequisite for, each nation’s pursuit of its own collective interests which his nationalist soul approves of both as its right and as its responsibility. The ambiguity looms large, however, if you go on to read the last chapter of the book where Miller discusses what he calls the “justice gap.” The justice gap is “a gap between what people in poor countries can legitimately claim as a matter of justice (protection of their human rights, especially) and what the citizens of rich countries are obliged, as a matter of justice, to sacrifice to fulfill these claims.”3 Miller holds that the justice gap remains because the full implementation of the human rights of poor people in developing countries often means imposing unduly heavy costs on developed countries that such countries may refuse to bear. When, then, is the burden imposed on rich countries considered excessive? Instead of giving a general answer to this question, Miller mentions some specific cases where rich countries may well refuse to pay the cost of helping poor countries. He suggests, for example, that France may refuse to withdraw its agricultural subsidies to its own farmers, thereby disadvantaging Third-World farmers, on the ground that the rural landscape maintained by small farmers is an essential part of French national identity.4 Without presenting any definite criteria for judging when rich countries can, and when they cannot, legitimately refuse to bear the burden for implementing the human rights of the world’s poor, Miller concludes by saying, “The justice gap can be narrowed, but it is unlikely to be closed entirely, until we reach the point where all societies are able to provide their members with decent lives, so that only natural disasters and the like would impose remedial responsibilities on outsiders…”5 Since the point where all societies are able to provide their members with decent lives is the point where rich countries no longer need to help the world’s poor beyond national borders, Miller seems to be suggesting that the justice gap is unavoidable in every non-ideal normal case where there is any need for rich countries to help poor countries, except in the case of “natural disaster and the like.” He also holds that citizens of rich countries “might very reasonably wish to set limits to their future liability, and therefore decline to authorize their governments to enter [an international contract so that] they bind themselves in advance to comply with the directives of the relevant international bodies [for helping the world’s poor].”6 Accordingly, his conclusion seems to condone the refusal of rich countries to bear the burden of helping the world’s poor except in emergencies such as natural disasters.

3 4

5 6

Miller (note 1), 274 In the conversation Miller and I had in the reception for him after our Tokyo Seminar for the 10th Kobe Lecture held at Meiji Gakuin University on July 2, 2011 where I presented the original version of this comment on him, he made a complementary response to my comment by saying that he did not categorically claim that France is justified in refusing to remove its agricultural subsidies on the ground presented in the text. But that he did not categorically claim France’s position is justified cannot change the fact that he did not categorically claim that it is unjustified either. He left open the possibility that it can be justified. Miller (note 1), 275 Ibid., 274–5. Italics and square-bracketed insertion are mine.

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Miller’s sympathy with rich countries in their desire to limit their remedial responsibilities towards the world’s poor as they see fit is engendered by his perception that the elimination of world poverty would actually cost them far more than the estimated amount they are supposed to contribute in order to attain their goal of raising the world’s poor above a certain threshold such as the $ 1-per-day poverty line. He rejects such estimations somewhat derisively as “back-of-the-envelope calculations”, which he thinks obscure the following point: namely, that “abolishing poverty requires radical transformation of the institutions, practices, and cultures of societies that reproduce it from generation to generation. Our history of failed attempts to engineer such transformations should make us acutely aware of the potential costs of further attempts.”7 Aside from the issue of the relative importance of domestic and international causal factors in world poverty that I shall discuss later, Miller is nevertheless right in contending that a mere resource transfer from rich countries to poor ones in order to raise the latter above the poverty line cannot eliminate the causes of poverty. But it does not follow that such a transfer cannot alleviate the dire consequences of the poverty, including the annual 18 million poverty-related deaths. Nor does it follow that we are not required to bear any costs to reduce the pains and deaths of the world’s poor unless we can eradicate the causes of their poverty. Shifting 1/70 of the consumption expenditure of rich countries is said to be enough to raise all the world’s poor above the higher poverty line of $ 2 (PPP in US in 1993) per day.8 Miller may be right to ridicule this estimation as another example of back-of-the-envelope calculations, especially since there are many practical problems to be solved before such a transfer can be effectively implemented. Yet the financial costs incurred by rich countries in the transfer is very modest, indeed far below the amount they would deem unacceptable. Even if domestic factors of poor countries such as corruption and administrative incompetence reduce the efficacy of delivering relief supplies to the needy, such a transfer project would still make a considerable difference to the world’s poor, provided that rich countries were willing to cooperate on such a transfer. The trouble is that such countries have shown a general lack of willingness to cooperate, even on much more modest relief projects than this one. Miller’s notion of the justice gap shows that there is a tension between his globalist soul, which upholds the right of the world’s poor to lead minimally decent human lives, and his nationalist soul, which defends the rich countries’ right to limit their burden of helping the world’s poor to an extent they deem compatible with their legitimate national interests. But the question as to how much a burden is an undue burden for rich countries is one that Miller leaves to the rich countries to answer. Consequently, one suspects that Miller does not resolve the tension between his two souls in a fair, principled way but rather by selling his globalist soul to his nationalist one. Although one’s suspicion may be ill-founded, it cannot be removed without Miller’s clearly explaining how and to what extent his globalist soul retains a moral power against his nationalist one to resolve the justice gap.

7 8

Ibid., 275 Thomas Pogge, World Poverty and Human Rights, 2nd ed., Cambridge, 2008, 3

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3. THE SPELL

OF

EXPLANATORY NATIONALISM

Even if Miller’s globalist soul is in thrall to his nationalist soul as regards the remedial responsibility of rich countries in general towards world poverty, there is a possibility that his globalist soul may be redeemed when the outcome responsibility comes into question. According to Miller, outcome responsibility is ascribed to us when we are actively involved in causing harms to others. Remedial responsibility in general does not depend on outcome responsibility, though the former can be generated by the latter and is primarily and most stringently assigned to those who have outcome responsibility. If rich countries have outcome responsibility for world poverty, Miller should be asking them to make a far greater sacrifice of their national interests to carry out their global responsibility towards world poverty than his perception of the justice gap leads them to accept. But this possibility of redeeming his globalist soul is prevented by Miller’s attempt to downplay the outcome responsibility of developed countries towards world poverty. Thomas Pogge is currently the most prominent advocate of the thesis that rich countries have outcome responsibility towards world poverty,9 arguing that rich countries have been imposing on developing countries global politico-economic institutions that inflict foreseeable and avoidable harm on them. Although Miller concedes that some aspects of the current global order such as the market-fundamentalist IMF policy of conditionality have disadvantaged developing countries, he criticizes Pogge on the ground that “even with the imperfect order that we have, many societies have already achieved significant advances, and that at the very least suggests that (outcome) responsibility for the condition of those that remain cannot simply be attributed to that order and the rich societies that uphold it.”10 He then goes on to confirm his point with the following analogy: “[T]he roundabout may be badly designed, but the fact that it can be navigated safely by careful drivers shows that some considerable share of responsibility for the accidents that do happen must rest on the shoulders of drivers themselves.”11 Miller’s criticism fails because he has missed the point of Pogge’s arguments, which has led him to the same kind of fallacy as what Pogge calls ‘explanatory nationalism.’ Miller says, “Explanatory nationalism is the view that relative wealth and poverty of different societies can be fully explained by institutions and policies that are internal to it.”12 This definition is not quite accurate. The fundamental error of explanatory nationalism indicated by Pogge does not lie in what Miller summarized as its conclusion but, rather, in its fallacious mode of inference from the fact of the different achievements of different developing countries under the same global order to the negation of the relevance of global order to the explanation of world poverty and to the negation of the outcome responsibility of rich countries that uphold that order. Pogge criticizes this inference for committing fallacies of non sequitur and begging the question, for even if different levels of achievements of developing countries show that the plights of poor countries are partially explicable in terms of their own domestic factors, there are still the following possibilities to take 9 10 11 12

See ibid.; Pogge, Politics as Usual: What Lies Behind the Pro-Poor Rhetoric, Cambridge, 2010. Miller (note 1), 244 Ibid. Ibid.

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into account: (a) the current global order might have added further causal factors of those problems, without which the plight of developing countries would have been far less terrible; and (b) the current global order might have been making causal contributions to encouraging such domestic factors of poor countries as despotic regimes, frequent military coups d’état, corrupt and irresponsible governance, by providing the rulers of poor countries and foreign actors incentives and effective means of generating and reproducing those domestic factors. The point of Pogge’s criticism of explanatory nationalism is that we cannot, or should not, make normative judgments about the relative gravity of the outcome responsibilities of rich and poor countries towards world poverty, much less deny the responsibilities of rich countries, without considering whether these possibilities are realities of the actual world. In the above-quoted statement Miller concludes from the different levels of achievements of developing countries that outcome responsibility for world poverty “cannot simply be attributed to [the global] order and rich countries that uphold it.” His inference would not be problematic at all if he simply meant that poor countries have some, non-zero outcome responsibility. The only problem would be that, as even Pogge would not deny such a weak claim, it would not work as a proper criticism of Pogge’s argument. Miller, however, does mean more than this. This is why he thinks his inference could refute Pogge’s thesis. The stronger claim he does mean to conclude is indicated by his use of the analogy of “the badly designed roundabout.” Let me examine the points and flaws of his stronger claim implied by this analogy. First of all, Miller says, “[T]he fact that it [the badly designed roundabout] can be navigated safely by careful drivers shows that some considerable share of responsibility for the accidents that do happen must rest on the shoulders of drivers themselves.”13 Here he claims that the fact of differentiated achievements of developing countries implies that some considerable share – not just some, non-zero share! – of responsibility for the world poverty must rest on the shoulders of those countries remaining poor. Therefore he makes a normative assessment, even if a rough one, of the relative gravity of rich and poor countries’ responsibilities, whereby he claims that the poor countries’ share of outcome responsibility for their plights is not small but quite considerable. The problem is that he makes this strong claim by inference from his premise (of different levels of achievements) without making a close examination of the possibilities suggested by Pogge. Thus he commits the same kind of non sequitur fallacy that explanatory nationalism does. Second, the “roundabout” analogy assumes that the badly designed roundabout increases the risk of accidents only by requiring more careful driving than well designed ones, without making any causal contribution to the carelessness of the drivers who are involved in the accidents. In other words, their carelessness is assumed to be simply their own personal characteristic that they possess independently of the design of the roundabout. By using this analogy Miller assumes, and tries to make us assume, that the design of the global order has no influence on the domestic factors that prevent poor countries from making economic progress, and that such countries are fully and exclusively responsible for their own domestic problems. 13

Ibid. Italics and square-bracketed insertions are mine.

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This assumption allows Miller to ignore the need to examine possibility (b) suggested by Pogge. In order to put a considerable share of responsibility on the shoulders of poor countries, Miller makes this assumption, thereby committing the same kind of question-begging fallacy as explanatory nationalism does. Noteworthy here is that Pogge by no means jumps from his logical point that explanatory nationalism is inferentially fallacious to his substantial conclusion, namely, that possibilities (a) and (b) are the reality of the current global order. If he did, he would be subject to the criticism that he, too, had committed the fallacies of non sequitur and begging the question. As it is, Pogge offers detailed and wideranging arguments involving both empirical and normative analyses to substantiate his conclusion. For example, the critical analysis of international resources and borrowing privileges which he uses to substantiate possibility (b) as a reality is among the most important of his arguments. To be sure, these arguments may be controversial enough to require further development and perhaps even revision. But they raise issues of crucial importance that need to be addressed with in-depth empirical and normative investigations if we are to make a morally sincere assessment of the responsibilities of rich and poor countries towards world poverty and to find a practical and appropriate way of overcoming it. It is regrettable that the spell of obstinate ‘explanatory nationalism’ that binds Miller seems to prevent him from making the best of his admirable intellect to address head-on the substantially important issues raised by Pogge. 4. MANIPULATION OF THE BURDEN AS AN ILLUSTRATION

OF

PROOF:

THE

ISSUE

OF

COLONIALISM

There is one necessary caution to be exercised in the debates on such issues. As a matter of moral and intellectual integrity, we ought to resist the temptation to entrench our assumption by shifting the burden of proof onto those who challenge it or by imposing a heavier burden of proof on our critics while easing our own.14 This is so especially when our assumption defends, or minimizes the need to change, the status quo from which we stand to benefit. People in rich countries, including intellectuals, must be aware that they are susceptible to such a temptation in the debates on global justice.

14

A typical rejoinder to Pogge’s thesis made by those who want to limit rich countries’ responsibility to the level well below what he requires is that he falls short of proving his empirical claims about the causal contribution of the current global order to world poverty. But the conclusive proof of empirical claims is impossible for any position held about the matter in question. All that Pogge and his critics can do is to offer empirical evidence for their positions as reasonably held preponderant over those of their opponents. Since Pogge has done that, it would be an unfair shift of the burden of proof to reject his evidence simply for being inconclusive because they provide insufficient countervailing evidence for the opposite position. For discussions of the empirical basis of Pogge’s thesis, see the criticisms of Pogge by Joshua Cohen and Neera Chandhoke and his replies to them presented in Alison Jaggar (ed.), Thomas Pogge and His Critics, Cambridge, 2010, 18–45, 66–83, 175–191, 200–209. I have developed my arguments about this issue and other related ones in Tatsuo Inoue, Sekai Seigiron [A Theory of Global Justice], Tokyo, 2012.

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In this connection, I must confess that I find it regrettable that Miller succumbed to this temptation when he makes the following statement about what is usually regarded as a typical historical example of an institutional wrongs, namely, colonialism: “As for colonialism, one would need to show not just that it wronged the people who were colonized in various ways, but that its overall impact on the development of the societies in which it occurred was negative. Given that many previously colonized societies are among the economic success stories … this would be a hard task to accomplish.”15 To say nothing of the inconsistency between the colonialist paternalism suggested here and Miller’s nationalist soul, this statement is seriously flawed in the following respects. First, the burden of proof is shifted from the colonialists who claim that colonial rule was on the whole good for the colonized onto the anti-colonialists who reject colonial rule and its legacies as evils. Miller requires that colonialism should be presumed to be an overall good for the colonized unless the latter can offer sufficient proof to the contrary. Even if it ever be admitted that the overall impact of colonialism is open to debate, it would be unfair to require that presumption to be made in favor of colonialism. Second, the anti-colonialists’ burden of proof is raised to such a formidable extent that they have to prove not just the harm of colonial rule but also the non-existence of its benefits offsetting and outweighing that harm. The demonstration required here is not just “a hard task,” as Miller says, but an impossible one because it is a probatio diabolica, a logically impossible proof, to demonstrate the non-existence of any given object. Third, Miller’s willingness to emphasize the advantageous influence of the past colonialism of rich countries on the economic development of their former colonies exhibits a perplexing contrast with his reluctance to attach much importance to the disadvantageous impact that the current global order managed by rich countries has on the poor countries. For instance, present-day India is one of the most impressive “economic success stories” among former British colonies. His above-quoted statement implies that he is much inclined to attribute the current Indian success to the legacy of British colonialism. But what about the past economic predicaments that India suffered for a long time after its independence from British rule, and the severe poverty that persists even now among a great number of Indian people excluded from the benefits of the current economic development? We have seen above that Miller attaches great weight to the national self-responsibility of poor countries for their economic plight. Given this viewpoint, we cannot but judge that Miller is reluctant to acknowledge that the British colonial practices and the current global order have made, and, indeed, are still making, such causal contributions to India’s past stagnation and present failures that are comparable to the impact of the British colonial legacy on current Indian economic successes. Such asymmetry in causal assessment is a self-rationalizing epistemic bias that is widely seen among developed countries with a colonial past, including not only Britain and other Western countries but also Japan. The factual claims about the causal contribution of the colonialist legacy to the recent economic successes of former colonies are at least as debatable as those about the causal influence of the 15

Miller (note 1), 251. Italics mine.

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colonialist legacy and current global order on world poverty. We cannot reject the latter as unproven while taking it for granted that the former is proven. Last but not least, Miller’s demand for the proof of the overall negative impact of colonialism is based on a substantial moral error about permissible trade-offs. If it is acknowledged that colonialism “wronged the people who were colonized in various ways,” then it must ipso facto be admitted that former colonialist countries have outcome responsibility for their institutional wrongs. Even if one shows, as Miller assumes he can, that colonialism brought benefits to the colonized peoples, the colonialist country’s outcome responsibility for the institutional harm done to the colonized cannot simply be cancelled out by the benefits they also enjoyed. Moreover, it is utterly mistaken to deny the colonizer’s responsibility by inferring, as Miller does, that just because there are many former colonies that reaped such benefits, those that failed to do so are wholly responsible for their adversity. This point may be made clearer by the following analogy. Suppose that, while A coercively enslaved and exploited B for A’s own sake, B acquired some skills through forced labor and used them to advance B’s own interests after the latter’s emancipation from slavery to A. This fact provides no moral reason for cancelling out A’s responsibility for the harms inflicted on B by enslavement. If it did, slaveholders could very easily give moral justification for slavery. A has a moral liability to compensate B for wrongs he has done, irrespective of the benefits that B has reaped by using the skills acquired. Moreover, suppose that A enslaved both B and C by imposing the same forced labor on them, and that C was not as good at acquiring skills as B, with the result that C failed to improve his situation like B after emancipation and remained impoverished, having been worn out by slavery. In that case we cannot deny or diminish A’s responsibility for the harm caused by enslavement by saying that, since B was able to improve his situation after emancipation, C’s failure to do so is simply C’s own responsibility. If it is morally wrong to claim that the slaveholder’s responsibility for the harm done to his slaves can be cancelled out by giving them the opportunity to improve their skills, then it is also morally wrong to claim that the colonizer’s responsibility for the harm inflicted on the colonized is also cancelled out by giving the latter the opportunity to improve their ability to make economic progress. Miller’s above-quoted statement is a brief one, but I do not think he would say that it is one too casual to be taken seriously. If he had made such a tendentious comment casually, it would be more, not less, problematic. Accordingly, I have taken it seriously and presented a serious critique of it. To forestall any misunderstandings, however, I should like to say that my criticism of Miller is not an attempt to depict him as a colonialist or neo-colonialist. At least he can hardly be one so long as he is genuinely committed to nationalism. My criticism is rather meant to show that his brief comment on colonialism exemplifies what I have shown above as the more general bias with which he downplays the outcome responsibility of rich developed countries for world poverty, while exaggerating the self-responsibility of poor countries.

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5. CONCLUSION Miller’s book is a thought-provoking tour de force. I admire his bold and frank attempt to tackle the difficult task of accommodating the tension between nationalist and globalist concerns by giving both their due. But his arguments are vitiated by his dubious notion of the justice gap, his captivity to the spell of explanatory nationalism and the arbitrary manipulation of the burden of proof, with the result that he ends by giving globalist concern less than its due, while giving nationalist concern more than its due. My comments may seem harsh, but I will be very glad if Miller understands that I have made these comments in the hope that they will help him to reconstruct his theory into a more robust, well-balanced and coherent one. Tatsuo Inoue Graduate Schools for Law and Politics The University of Tokyo 7-3-1 Hongo, Bunkyo-ku, Tokyo, 113-0033, Japan

KO HASEGAWA, SAPPORO (UNIVERSITY OF HOKKAIDO) GETTING THROUGH NATIONAL RESPONSIBILITY GLOBAL JUSTICE*

TOWARD

1 PRELIMINARY REMARKS Let me start by saying that I regard myself as an egalitarian, though not much left but rather liberal1; which will not be so far from the moral position of Professor David Miller. I agree with the basic tenets of Professor Miller’s ideas as developed in his National Responsibility and Global Justice and other related books2, as well as most of his view on justice, nationality, and global justice. Indeed, I recognize that the idea of need is important; that distributive justice with freedom or some meritocracy in a domestic society is important; that this outlook requires the idea of community which assumes some boundary of the cultural, the ethical, and the national; that nationality may have a broader meaning than is usually identified as including various nations and cultures within it; that the idea of human rights may hold certain universal character both morally and legally; and that there are the strength and the limitation of national responsibility for global problems. Accordingly I confess that it is relatively difficult for me to be much critical of Professor Miller’s sensible view on the limits of global justice, which is the consequence of what I can agree with him. Nevertheless, since I have several uneasiness and questions about Professor Miller’s view on the relationship between national responsibility and global justice, I would like to clarify them in this comment, especially to invite his rejoinders and to further our discussion about the important and urgent issues of the world today. 2 THE THREEFOLD POINT

TO

DISCUSS

My concern here is threefold and the common thread lies in the coexistence or subsidiarity of national responsibility and global justice in terms of liberal equality. It might be natural to think in some narrow fashion that national responsibility is basically state-oriented and not conductive to global justice. But if we may think more broadly that global justice requires multifarious conditions for its realization, including national responsibility as a state-oriented condition along with other nonstate-bound conditions, then there will be a certain detour to global justice with the *

1 2

This is the revised version of my comment read at the 10th IVR-Japan Kobe Lecture, Tokyo Seminar, on July 2, 2011. I am very grateful to the organizer of this seminar who invited me to this significant opportunity, and also to Professor David Miller who then sincerely responded to my thoughts. Cf. Will Kymlicka, Left-Liberalism Revisited, in The Egalitarian Conscience, ed. Christine Sypnowich, 2006, 9–35. David Miller, National Responsibility and Global Justice, 2007; do., Principles of Social Justice, 2001; do., Citizenship and National Identity, 2000; do., On Nationality, 1995. Particularly relevant for my comment is the first one.

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idea of national responsibility. Actually, the idea of human rights can be considered as an example of this kind of perspective. While we may identify, as Professor Miller sensibly does, certain negative liberty rights as the core of human rights to be protected beyond narrow national boundaries, there are other sorts of positive human rights exemplified in International Human Rights A Convention as well as the active roles of certain transnational legal frameworks, organizations, and associations within the realm of global justice for the protection of poor and minority peoples in the world. Furthermore, when we consider people whose individual selves hold certain multiplicity of identities and responsibilities, we may get some view of what I wish to call multiple responsibilities of people. These, in turn, can lead to the view that we have both national and global responsibilities, as well as other sorts of responsibilities, non-exclusively and simultaneously. And, if all be so, then we will be able to hold a significant route of getting through national responsibility toward global justice, which I believe requires us to reconsider the real significance of human responsibility in general. 3 A DETOUR

FOR

GLOBAL JUSTICE

First, let me talk about a detour for global justice. It is well known that there are various organizations and active people beyond state-borders for the furtherance of global justice. Such organizations as Amnesty, Oxfam, Human Rights Watch, and Medicins sans Frontieres and other voluntary groups of engaging citizens or indigenous peoples in the world have been very active in identifying and solving serious problems concerning global justice, such as “conscientious prisoners”, world poverty, sexual discriminations, the problem of children’s health, and the historical injustices against native peoples. From a nationalist viewpoint where Professor Miller bases himself, this situation indicates that, although these movements and issues are very important and urgent, most of them are not the problem of justice in a boundary of nationality but rather the problem of voluntary humanitarian support. In this regard, those movements and people are supposed as a matter of fact not to be working for justice but to be performing virtuous acts of charity and solidarity. However, is it adequate self-restraint of the idea of justice? The point I wish to raise here is not simply that there are various non-national actors for global justice, which is theoretically naïve, but rather that the subsistence and workings of those non-national actors vividly evidence the irrelevance of the strong view on national responsibility to justice. This is related to the philosophical point that the normativity of the idea of justice can be sustained and extended itself.3 From the other angle of nationality, this situation can be evidently the opposite that the boundary of nationality gives the enforceable limit to the idea of justice. But the point here is rather that there is the ideational logic in the normativity of justice which is irrelevant to nationality, even if this idea of nationality be sensibly interpreted in such a broader way as Professor Miller does with including various 3

Cf. Jon Mandle, Global Justice, 2006, 88ff. This point is not concerned with some Hegelian metaphysics of concept but rather with the working of concepts in our moral reasoning. Also, cf. John Searle, Philosophy in a New Century, 2008, 34ff; 161ff.

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peoples and cultures in it. For this internal logic of justice, nationality is not the boundary of realizability but rather a factual condition of satisfaction: the boundary of nationality is a condition to be circumscribed for the global realization of justice.4 Furthermore, the point here is also not concerned with the anchor of nationality such as the establishment of coercive state-power; rather the stake is the scope of the idea itself. From the viewpoint of nationality, justice is not realistically effective if it lacks these boundary conditions. One might agree with this, if one should think justice as only realistically effective. Still, I think the idea of justice itself holds certain moral force, even if there is not such effectiveness. Effectiveness is indeed an important condition for realistic justice, but not a necessary condition for its moral force. With its normativity, justice itself should be maintained everywhere beyond realistic divisions and distances surrounding it. Two things should be emphasized here: first, global justice can be realized by the collaboration of many agents in so far as there are many parties who contribute to the solution of the world problems as mentioned above. Even capitalists or social entrepreneurs may contribute to this situation in some measure, and the group of native minorities can mobilize various movements and opportunities for the enhancement of their moral or legal recognition. Of course justice cannot be realized without a certain power behind it. But can we not think about some relatively weaker power mechanism such as a collaboration of NGOs and citizens as enforcement alternatives along with national governments? Secondly, it is paradoxically evident that national responsibility is not to be the limit of but rather the support for the realization (even if partially) of global justice. From a narrow understanding of national responsibility, the problem of global justice might be out of scope; which yet does mean that, since that problem almost always extends beyond national borders, national responsibility must fill the gap in these problems as a supportive constituent of those global activities. In fact, how may we think it legitimate to claim nationality as the only condition of boundary for justice vis-à-vis other conditions for it? Then this would mean that the idea of global justice should be sustained by the moral nexus of peoples throughout the world. This nexus is constitutive not only of individual citizens, associations such as NGOs but also of public organizations such as UN, EU as well as other national governments; it is not just a humanitarian relationship but rather the moral cooperation under the idea of global justice.5 Incidentally, the idea of global justice does not need here a strong tie of community between peoples, as Professor Miller defends in the idea of distributive equality between members in a particular society. Global justice may need only the international cooperation between state institutions, which may be shown by the respectful aid for the holding of certain resource equality between them.6

4 5 6

Cf. Mandle (note 3), 39ff. Onora O’Neill, Agents of Justice, Global Justice, ed. Thomas Pogge, 2001, 196ff. Mandle (note 3), 111ff. Also, cf. Andrew Hurrell, Global Inequality and International Institutions, Pogge (note 5), 47ff.

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4 POSITIVE IMPLICATIONS

OF

HUMAN RIGHTS

I wish now to talk about human rights and their positive implications. If we are to recognize, as Professor Miller does in his book, that human rights should be protected even if it is dislocated from the problem of national responsibility, then we may find certain minimal commitment to the necessity of the protection of global human interests. It is itself significant, and yet, if we say so, then we should recognize other positive rights to education and labor or subsistence and other cultural interests, which have been protected in the sphere of international human rights law. If these rights are to be recognized in law, then how are they to be required for their protections? I think this is because they are required to cover certain disadvantages in human need from the very viewpoint of justice. Indeed there can arise the problem of national responsibility. For example, if we think the idea of human rights is a part of global justice, how can we identify an effective power to enforce that idea? If the existence of UN is a part of such conditions, it is clear that it is not a sufficient condition for global justice. Even if UN advocates the importance of human rights, it is another thing whether it can really enforce them through several institutional mechanisms provided internationally. Again, even if the protection of human rights can be thought as internationally significant, it cannot be really a matter of global justice; we need some stronger mechanism for the substantial protection of human rights. However, why do we think that the idea of human rights is relevant in global context? Let us put this issue from another angle. Of course, justice in global context may be difficult to attain for lack of effective enforcement mechanism and strong sense of community. Yet, can we immediately say justice is globally unimportant, when we acknowledge the significance of human rights? If there is dire poverty and historical suffering which we should put an end to the full, is it impossible for the victims of such conditions to claim a legitimate demand for justice in such contexts? And can we think it insignificant to provide certain (even if not full) support for it? The answer is clearly, No, because we may think that while such justice may be difficult to really attain, it would be worth our while to think about global justice in terms of the equal protection of human rights. Also, in the case of, say, the indigenous rights claims against the colonization by modern states, it is well known that those peoples and other related organizations try to justify and even share their claims by resorting to various kinds of legal sources. The hyper-jump between international law and state law is also to be seen in the legal mobilization of indigenous people in a society; which shapes itself a transnational human rights problem. In so doing, indigenous peoples can utilize non-national human rights documents in order to solve their own domestic problems and try to transform the existing (often narrow) understanding of the domestic laws in question.7 I think this is a significant example of the interlegality of the idea of human rights for shaping the recognition of global justice by way of national problem. In a sense, this sort of dissociative legal attempts to overcome the limits of 7

An example of this is what the Ainu, the indigenous peoples in Japan, has been trying. Cf. Ko Hasegawa, Integration of the Ainu Minority in Japan, Comparative Sociology 9 (2010), 663–685. Also, generally, cf. Mark Goodale, Introduction, The Practice of Human Rights, ed. Mark Goodale and Sally Engle Merry, 2007.

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domestic law might still be out of question as far as national legal systems are concerned. Within a national legal system, some rule of recognition can filter the claims from other kinds of legal systems. If so, the problem of national responsibility remains for the working of human rights. Although there are important human interests at stake here, it might be another problem to place them in the idea of global justice. But I maintain in this respect, owing to the fact that interpretative problems are both ubiquitous and valuational in any possible connections among various legal spheres on this globe, the mobilization of the interlegality for the idea of human rights anchors divergent normative connections for global justice. Here, the difference of various laws becomes only the difference of emphasis between national laws and other kinds of international law, involving as they do inventive relationships among various norms at different levels of interlegality.8 And, if we can say this, the realization of human rights itself already implicates the importance of equality in global justice. At this point we might be able to distinguish the anarchist, the wholist, and the integrationist standpoints for global law of human rights, and also, within the integrationist camp, the libertarian, the liberal, and the communitarian positions for the conditions of human rights order. In this regard, I will take the integrationist and liberal (egalitarian) position, while Professor Miller might take the integrationist and communitarian (liberal) position. This might show the difference between us. Nevertheless, the fundamental question here is already concerned not only with national responsibility but also with global stance toward human rights issues. 5 MULTIPLE SELF

AND

ITS RESPONSIBILITIES

Finally, let me turn to the problem of multiple self and its responsibilities. As Michael Walzer perceptively argues9, our self is multiple with different identities such as racial, familial, associational, civil, and so on. These identities can have different responsibilities in accordance with the different levels of identity relationships to others. Now, national responsibility naturally corresponds to an aspect of the civil identity of people in a state, and we have certain civil responsibilities at this dimension for, say, the purposive activities and their results of our national governments toward others. At the same time, we must also beware that we have other dimensions of identity as well as other sorts of responsibilities, and that, which is important here, these identities and responsibilities have basically equal status in our personhood. In other words, no responsibility enjoys the fixed privileged status in our personhood, even if the strength of each responsibility may be variable according to the problem-contexts we are involved with. Our responsibilities subsist multiply and work heterarchically. The point here is that, for integrating all these identities and responsibilities in our personhood, we are required to strike a balance between them, as Walzer suggests, through the “chairperson” within our self. So the question here is whether this very “chairperson” says that only national identity and responsibility are relevant to justice, or not. And, needless to say, the other related question 8 9

Boaventura de Sousa Santos, Toward a New Legal Common Sense (2nd. ed.), 2002), 194ff.; 237 ff. Michael Walzer, Thick and Thin, 1994, Ch. 5.

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here is whether or not the significance of civil identity and responsibility are only national. In this regard, it seems clear enough that, whereas our civil identity and responsibility has a good deal to do with nationality, there can be other connections not only between civil identity and responsibility and the broader idea of justice, but also even between racial, familial, and associational identities and responsibilities and that idea of justice. These identities and responsibilities are, if only to some extent, conductive to the idea of justice on equal terms, though racial and associational identities and responsibilities can be more strongly so, as I have remarked earlier from a different angle with respect to the case of indigenous peoples. When our sense of justice is supported by our personhood and our self is integratively multiple in her identities and responsibilities, the normativity of justice should be recognized regardless to the breadth of its scope. Let me add other points concerning responsibility. Professor Miller talks about the limits of what he calls “remedial responsibility”, when there is no direct causal relationship between the nation-state and the wrongs or damages as identified in the global problem-scale. This is an understandable position to the extent that a nationstate’s intentional or negligent activities cause global problems. Yet this seems a narrow position; for certain global problems often arise through the externality of the nation-state activities or through the damage done to common good surrounding nation-states. By the externality of the nation-state activities is meant the external effects or unintended consequences of the activities of nation-states10. For example, the wastes of electrical devices or industrial products may be taken from one nation-state to other nation-states, which inadvertently cause environmental pollutions in other nation-states11. Since there are few direct relationships between the activity of one nation-state and the environmental disasters in other nation-states, could we then say there is no question of justice between these states? If the answer is negative, it would be the problem of the cooperation of nation-states; but then it should mean that certain global problems are to be handled in a transnational perspective on some egalitarian basis. Also, the damage to common good will happen, when scattered damages of, say, flood or heat-wave occurs through the cumulative effects of various state-based activities for global warming on a large scale. Here the control of climate conditions cannot go well and the managements among various states hold many gaps; some richer nation-states may recover those damages by utilizing effective facilities whereas other poorer states cannot deal with disasters in leaving various people affected in vain.12 Then could we say that richer nation-states have no obligations to support for poorer states? Again, if the answer is negative, it would be the problem of the cooperation of nation-states, which should also mean that certain global problems are to be handled in a transnational egalitarian perspective. Indeed, one might say, as Professor Miller does, the scope of justice is regrettably bound by the sense of community and effective at the level of individual 10 11 12

Cf. Thomas Pogge, World Poverty and Human Rights, 2002, Ch. 3. The Fukushima-Daiichi nuclear accident in Japan in March, 2011, may be one of the tragic examples of this kind. This is an aspect of the problem of “climate justice”. See, United Nations Development Program, Human Development Report 2007/2008 [Fighting Climate Change: Human Solidarity in a Divided World], at http://hdr.undp.org/en/media/ HDR_20072008_Summary_English.pdf.

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members. Important here, however, is not the balance of interests among individual members of a community but rather the adequate institutional support for weaker communities. As these examples suggest, we are bound to adhere to equality-oriented principles of justice in a global context. 6 CONCLUDING REMARKS To my mind, the very idea that there is a conflict of the ideas between national responsibility and global justice means that global problems such as poverty, historical injustice, or environmental damage require us human beings to respond to them in a proper way. In other words, I believe that it is possible, and sometimes even necessary, even if we should take national responsibility basic, for us to get through it toward the standpoint of global justice for some sort of equality. Taking national responsibility important is one thing, and yet taking other sorts of relevant responsibility is another; we hold not one-dimensional sense of justice but rather integratively multiple sense of it. Ultimately, I believe, it is due to the moral force of this sovereign idea of justice that will enable us to go beyond the limit of a dimension of our identity and a border of nationality for its realization. To be sure, if we need to be realistic about the actuality of politics and law particularly in inter- and trans-national contexts, we should not overrate the ideational and moral force of justice. There are multifarious complex relationships between peoples, organizations, and other actors, as well as natural and societal circumstances in various parts of this entire world; which may be beyond the grasp of our ideas. Still, it would be a mistake that we appreciate that moral power much less and restrict ourselves only to the boundary of our nationality, even if this is sensibly explicated as broadly artificial by Professor Miller. If we should make better use of this artificial nationality for human order on this globe, there will be multiple routes for it, as human nature is multiply complex in human personhood and sociality as well as in human responsibilities. Human bond works in a certain part of human subsistence by getting beyond the circle of closer fellows to reach the level of globe, since all of us on this globe are living together as equals. Ko Hasegawa School of Law, University of Hokkaido Kita-9, Nishi-7, Kita-ku, Sapporo, Hokkaido 060-0809 Japan

FUMIHIKO ISHIYAMA, TOKYO (CHUO UNIVERSITY) NATIONAL RESPONSIBILITY: WHAT SPECIAL RELEVANCE DOES IT HAVE TO THE WORLD AS IT IS? 1. INTRODUCTION In National Responsibility and Global Justice, David Miller defends the idea of national responsibility1 and argues, inter alia, that where ‘a global minimum’ is secured global inequalities are justified if they are the consequences of the collective actions of nations.2 National responsibility is the idea that ‘given appropriate circumstances, it is reasonable to hold members of a national community responsible for the gains and losses that they create, both for themselves and for others’.3 This is one of the main components of his theory of global justice, in that it provides reasons for developed countries to retain their resources they have rightly produced, while it may require them to compensate for the damages their ancestors caused by colonial rule. At the same time, Miller denies the legitimacy of global redistribution in so far as people of developing countries are responsible for their own poverty. I wonder why Miller emphasizes national responsibility in his theory of global justice when he could have found many other entities which should bear collective responsibility, such as states, ethnic groups, and so on. According to Miller, the collective action of nations can take two different forms: action deliberately concerted through political channels, and action by individuals which expresses the common culture.4 However, the former kind of action can also be done by state and local governments, and the latter by ethnic groups, for example. If nations can be held outcome responsible, i. e., credited or debited with a particular outcome, so can these other collectives. Thus, if we assume, for the sake of argument, Miller’s general account of collective responsibility,5 not only nations but also other kinds of collectives can be held outcome responsible. That is why I wish Miller had included all these diverse collectives in his discussion of global justice. In this essay, I shall examine, first, how Miller treats state responsibility in his theory, and argue that, although he is well aware that there are nations which do not have their own states, he does not take this fact seriously enough (Section 2). Then I shall proceed to examine what relevance the idea of national responsibility has to questions of world poverty, and argue that, since there are many countries in which we cannot find any nations that can be held responsible, Miller should admit that responsibilities of collectives other than nations are equally important (Section 3). I shall conclude by expressing my concern that Miller’s theory might not have much 1 2 3 4 5

David Miller, National Responsibility and Global Justice, 2007, 81–161 Miller (note 1), esp. 163–200, 231–261 Miller (note 1), 232 Miller (note 1), 127–133 Miller (note 1), 114–124

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relevance to the world as it exists at present, unless he discusses concrete and more controversial issues of global justice at the same time. 2. IS

NATIONAL RESPONSIBILITY MORE ‘BASIC’ THAN STATE RESPONSIBILITY?

Miller argues that judgments of national responsibility are ‘more basic’ than those of state responsibility.6 What does he mean? He refers to stateless nations, namely, nations which do not have their own states or whose states no longer exist, and says that to limit responsibilities to states has ‘disadvantages.’ It might seem as if Miller opposed the idea of state responsibility, but this is not so. He does not deny that states can be held outcome responsible. He even says that state responsibility ‘might seem easier to establish.’ What he opposes is to ‘divorce state responsibility from national responsibility.’ He is in favor of viewing states as ‘agents of the people they are supposed to serve’.7 Now it is true that states can be seen as ‘acting on behalf of nations’ if we look at democratic nation-states. However, when we look at multinational states or undemocratic nation-states, it is not obvious that they are so acting. Indeed it is not easy to see on whose behalf those states are acting. And it is precisely with regard to these cases that talking about national as well as state responsibility has the greatest advantages, since stateless nations are relatively few. So I had hoped to see Miller discussing whether, and for whose actions, states and nations can be held responsible when the countries in question are multinational states or undemocratic nation-states. However, Miller does not say much on this issue. He argues that in cases where a nation is ruled from outside or is governed by autocracy it can never be held outcome responsible unless it gives genuine support to undemocratic rule.8 But whereas he does say a little about stateless nations and undemocratic nation-states, he says almost nothing about multinational states as far as the issue of national and state responsibility is concerned. How, then, could he have proceeded this way? It seems to me that this is because he takes the nation-state as a paradigm: most nations have their own states and those which do not would be better off if they did.9 According to him, we ‘live in a world of nations’10 whereby global justice is justice for ‘a world of nations’.11 I am not saying that Miller denies the factual existence of multinational states. On the contrary, he is very much aware of them and even refers to them.12 However, he says, at the same time, that ‘it is hard to find examples of states that are straightforwardly multinational’13 (italics mine). What look like multinational states are actually either ‘nested nations,’ i. e., ‘smaller groups with their own national identity but which at the same time identify more or less 6 7 8 9 10 11 12 13

Miller (note 1), 111 Miller (note 1), 111–112. See also Miller (note 1), 140–141. Miller (note 1), 127–130 David Miller, On Nationality, 1995 Miller (note 1), 264 Miller (note 1), 267 See, for example, Miller (note 1), 131 note 22. David Miller, A Response, in: Nationalism and Global Justice: David Miller and His Critics, eds. H. De Shutter and R. Tinnevelt, 2011, 185

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strongly with the larger nation of which they form a part,’ or nations ‘held together by coercive force.’14 I would be inclined to say that our world is still far from his paradigm. There are many nations around the world whose national identities are not ‘sufficiently liberalized’ or democratic, with many states made up of multiple nations. Although Miller himself would not deny this, he does not seem to take it seriously enough. I would even say that it is precisely by turning a blind eye to it that Miller can avoid the crucial issue of what the national and state responsibilities are in multinational states and thus pay only minimal attention to undemocratic nation-states. Even if our world was not far from his paradigm, it would not be unreasonable to expect him to present a non-ideal theory, as applicable to cases of multinational states and undemocratic nation-states. State responsibility and national responsibility will eventually coincide if the countries in question are democratic nation-states. It is where they do not coincide that talking about national as well as state responsibility will have advantages. Without such a non-ideal theory, we would remain uncertain of the ‘disadvantages’ of limiting responsibilities to states. It is one thing to view states as agents of some collectives, and quite another to view them as acting on behalf of ‘nations.’ If we are to argue only that states are mechanisms for the benefit of individuals who are to be governed, we do not need to go as far as to say that this is ‘a world of nations.’ It would suffice to say that this is a world of states which should be liberal and democratic. Thus, even if we could say that states are mechanisms for the benefit of some individuals, it does not prove that the individuals of a particular state necessarily constitute one nation. 3. NATIONAL

RESPONSIBILITY AND WORLD POVERTY

In the previous section, I argued that if Miller talked about national as well as state responsibility he would have taken into account countries which are not liberal democratic nation-states. Now I go on to argue that had he discussed these countries he would have admitted that responsibilities of collectives other than states and nations are an equally important part of global justice. I also argue that if we look for any nations which are outcome responsible for world poverty we may well find them in rich countries rather than in poor countries. Miller claims that when we think about the poverty of developing countries we must ‘not only consider the suffering itself, but also ask questions about how and why it has occurred: questions about responsibility’.15 And inequalities between rich and poor societies ‘can be justified when they can be shown to result from practices, policies, decisions for which the members of those societies can be held collectively responsible’.16 It would not be fair to describe Miller as someone who totally denied the legitimacy of global redistribution in cases where people of poor countries were outcome responsible for their poverty. Even so, his ‘intuition’ tells us that people of rich 14 15 16

loc. cit. Miller (note 1), 263 Miller (note 1), 8

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countries do have remedial responsibility, i. e., responsibility to come to the aid of those who need help, so long as the global minimum is not secured.17 But he suggests at the same time that the duty of relief this remedial responsibility gives rise to is just ‘a humanitarian duty’,18 whereas the duty of relief in cases like natural disasters, where none of the suffering people are outcome responsible, is claimed to be a duty of justice.19 Thus, it makes a big difference to Miller whether or not people of poor countries are outcome responsible for their poverty. However, it should be noted here that there are very few cases where people of poor countries are collectively outcome responsible for their poverty, even though Miller claims these cases are ‘not impossible’.20 Indeed, apart from natural disasters and economic shocks where nobody is outcome responsible, the only realistic description he gives us of ‘how and why [the suffering] has occurred’ is that the deprivation is due to a ‘subgroup within the society … which might … consist of a dictator and his henchmen, or an ethnic minority who monopolize the means of coercion’.21 In this case, it is the subgroup, not the people as a whole, that is outcome responsible, since it follows from his theory of national responsibility that nations in developing countries are responsible for their own poverty only when they are democracies, or when the people give genuine support to undemocratic rule in some other ways.22 That is why, if Miller is to raise ‘questions about responsibility’ for world poverty, he should take seriously the fact that many poverty-stricken countries are illiberal and/or undemocratic. And since it might well be the case that in these countries collective responsibility for their poverty does not fall on the people as a whole but on some subgroups, responsibilities of collectives other than states and nations are equally important as a matter of global justice as far as world poverty is concerned. Thus, although Miller argues for the idea of national responsibility, there are actually few nations in developing countries which are outcome responsible for their deprivations. Moreover, if there are any nations which are outcome responsible for world poverty, I would rather say that they are likely to be found in rich countries. As regards cases where a subgroup within a poverty-stricken country is outcome responsible, Miller says that people in rich countries have remedial responsibilities. But it ‘should be clear,’ as he also says, that the primary remedial responsibility lies with the subgroup. And, although people in rich countries have a duty of relief, ‘it may be better to say’ that this is not a duty of justice but a humanitarian duty.23 However, it seems Miller either assumes here that there are no cases where people in rich countries are outcome responsible or just keeps silence on such cases. Indeed, when he discusses ‘questions about how and why [the suffering] has occurred,’ he directs his attention almost exclusively to people of poor countries. It is true that 17 18 19 20 21 22 23

Miller (note 1), 258–259 loc.cit. Miller (note 1), 255–257 Miller (note 1), 258 Miller (note 1), 257. See also, Miller (note 1), 246 note 27. Miller (note 1), 127–130 Miller (note 1), 257–258

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he refers, though only in parentheses, to some possibility of foreign involvement. Thus, when he describes the cases where the responsibility for the poverty lies with a subgroup within the society, he suggests that the responsibility also lies ‘(… perhaps with foreign companies or governments who support them)’.24 But, regrettably, he never develops his own theory of national responsibility along this line. Now suppose that government agencies of a rich country (X) are outcome responsible for the poverty of an developing country (Y). What can be said in terms of national responsibility? According to Miller’s theory, state responsibility and national responsibility coincide where the countries in question are democratic nation-states. Therefore, if X is a democratic nation-state, not only its government but also its nation are outcome responsible for the poverty of Y. And, since many rich countries are, as Miller assumes,25 liberal democratic nation-states, it is quite probable that the nation of X is in fact outcome responsible. Furthermore, we could argue that nations of rich countries can be outcome responsible even when those involved in causing deprivations are not governments but private companies, since they do not effectively regulate the activities of those companies through democratic processes.26 Thus, while there are actually few nations in developing countries which are outcome responsible for their deprivations, nations of rich countries might be outcome responsible. And if they are, the duty that stems from this responsibility is not the duty of aid but that of compensation: it is not a humanitarian duty but a duty of justice, which should ‘trump’ whatever claim they might make of domestic justice, such as a claim for the wealth they have produced for themselves with which ‘to … support an extensive welfare state’.27 It should also be noted that nations of rich countries can be outcome responsible, even when the global minimum is secured for the people of developing countries. 4. CONCLUSION Even if we assume, as Miller does, that the idea of national responsibility matters in global justice, there are still a good many countries around the world today which lack the ‘appropriate circumstances’ to realize this idea. In a world like ours where not all countries are liberal democratic nation-states, global justice should encompass not only nations but also other collectives such as states, ethnic groups, and so on, and even perhaps some individuals. 24

25 26

27

Miller (note 1), 257. See also Miller (note 1), 10, where Miller mentions, although in a different context, a question of whether to ‘apply sanctions to the institutions responsible [for the poverty], which might in some cases be multinational corporations or government agencies’ (italics mine). Miller also admits, though only in general terms, that it is incorrect to say that rich societies are ‘in no way responsible for global poverty.’ Miller (note 1), 261 Miller (note 1), 245 Miller again comes close to raising a similar question in a different context: he talks about a case where ‘a multinational company employs workers in a developing country using a technology that seriously damages their health’ and asks whether ‘the shareholders in the company have an obligation to pay compensation to the sick employers.’ Miller (note 1), 11 Miller (note 1), 261

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I do not disagree with Miller that we should take some, but not all, of the facts about our world as ‘the circumstances of global justice’.28 Nor do I disagree that these ‘circumstances’ should include the view that our world is ‘made up of separate states, each enjoying some degree of autonomy, though markedly unequal power’.29 However, these ‘separate states’ are not necessarily liberal democratic nation-states, especially when they are developing countries. The idea of national responsibility does not itself tell us what nation should bear responsibility for what. Nor does the idea of collective responsibility in general tell us of itself who are responsible for the poverty of which country. If we just embrace the idea of collective responsibility without considering these concrete and more controversial issues, our theory will tend to be an empty vessel waiting to take on board any practical recommendations we like. I believe Miller would agree with this. He claims that ‘to know what we [people of rich countries] owe to the world’s poor, we have first to come up with … [an] account of the underlying causes of their poverty’.30 However, he does not develop this idea. Instead, he suggests some possible conclusions by making remarks which are only hypothetical and/or unrealistic and by raising other issues. Thus, even though Miller admits that cases where nations of poor countries are outcome responsible for their poverty are ‘few and far between,’ he repeatedly mentions such possibility. Thus he considers ‘what remedial responsibilities fall on outsiders’ in the case, say, of a poor country where the people ‘insist, for religious or other cultural reasons, on adhering to traditional forms of agriculture’ that can produce little food, thereby making themselves ‘chronically malnourished’.31 Again, he claims that ‘[if] after democratic debate … a policy [to diminish the population] is rejected, … the nation in question is collectively responsible for the consequences of population growth: its culture is such that it prefers large families to … less crowded roads and cities’.32 And, as I have argued above, Miller does not discuss whether and in what way rich nations can be outcome responsible for the poverty of developing countries, even though that might well be the case. Furthermore, while he admits that rich nations have remedial responsibilities to aid poor countries, he raises questions that might eventually cancel out those responsibilities: namely, whether and how far any domestic duty of social justice that rich nations might have, such as the duty ‘to support an extensive welfare state,’ can take precedence over their remedial responsibility toward the poor;33 or whether national values of rich nations ‘can legitimately be used to block remedial responsibility claims’ so that French people can tighten access to their market for farmers of poor countries for the reason that ‘having a landscape of vineyards and smallholdings’ in the countryside is essential to their national values.34

28 29 30 31 32 33 34

Miller (note 1), 19 Miller (note 1), 20 Miller (note 1), 261 Miller (note 1), 258–259 Miller (note 1), 128 Miller (note 1), 260–261 Miller (note 1), 273–274

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Miller might say that he just makes hypothetical arguments or that he just raises some important issues without putting forward a specific argument35. But I cannot help finding these remarks both arbitrary and biased. And although Miller criticizes Thomas Pogge for inconsistently applying the idea of national responsibility, i. e., for applying it only to the actions of rich nations and not to the situations of poor countries,36 we could criticize Miller for the same inconsistency in reverse. Or, if we took these remarks out of consideration, we would have to conclude that Miller’s theory at best runs the risk of being ‘merely a speculative exercise, of no practical use in guiding either our public policy or the individual decisions we make as citizens’.37 Fumihiko Ishiyama Faculty of Law, Chuo University 742-1 Higashinakano Hachioji-shi, Tokyo, 192-0393, Japan

35 36 37

Miller would also claim that a political philosopher is not ‘a right person’ to discuss concrete and more controversial issues. See Miller (note 3), 179–181. Miller (note 1), 244–245 Miller (note 1), 18–19

YUKO KAMISHIMA, TOKYO (CHUO UNIVERSITY) NEEDS, CAPABILITIES

AND

GLOBAL JUSTICE

ON MILLER’S NATIONAL RESPONSIBILITY AND GLOBAL JUSTICE INTRODUCTION For those who are concerned with global issues today, one project is to develop a fair conception of global justice – fair in the sense that the interests of all parties are taken into account. However, given severe global poverty and the huge gap between ‘the rich’ and ‘the poor’, or ‘the North’ and ‘the South’ in more traditional terms, the topics of global justice in political philosophy seem to have centered upon the question of how to improve the living standards of ‘the poor’ by trying to persuade ‘the rich’ to engage in more activities to that end. Political philosophers usually discuss economic distribution while economists tend to talk extensively about economic growth/development. David Miller’s book National Responsibility and Global Justice apparently belongs to the realm of political philosophy. What is conspicuous about the book is that Miller proposes a conception of global justice as something at once cosmopolitan and nationalistic. It is cosmopolitan in so far as it recognizes universal human rights and duties and aims to protect a certain level of global minimum for everyone everywhere, as Miller recognizes ‘the general responsibilities that we have to humanity at large’.1 On the other hand, it is nationalistic in so far as it insists on the political separateness and the goodness of a nation, asserting that ‘global justice must mean justice for a world of nations’.2 Historically, people have felt a sense of belonging to their own nation. So when Miller says that nationality is ‘one of the human goods’ that have intrinsic value, alongside family life, creative work, and so forth,3 he is not wrong, any more than his theoretical standpoint is wrong. Nevertheless, although his view seems to be fairer than other theoretical views in political philosophy since it takes people’s love of one’s nation more into account, it does not seem as stable a conception as it could be, for history has also shown that love of one’s nation might narrow people’s minds, and even cause strife. One might in any case prioritize a country’s national duties over its general duties, or excuse its indifference to global issues. Indeed, owing to the persistence of global poverty, anxiety has been expressed on the part of the rich about the direction of global justice. Is there any cut-off point to aid? Don’t we need to spend more money on our own children? No doubt, these are crucial issues that must be answered. But it is equally certain that these issues are likely to be raised by affluent people rather than by those in dire poverty. Despite Miller’s intention, then, his theory might provide the rich with good reasons for not taking more positive action. Sceptics might mistakenly find in Miller’s book an affirmation of the world’s status quo, and this is what I am concerned about. Accordingly, it 1 2 3

David Miller, National Responsibility and Global Justice, 2007, 44 Miller (note 1), 267 Miller (note 1), 39

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would be best to examine Miller’s standpoint carefully in order to come up with a fairer and more stable conception to deal with global issues. One of my specific concerns here is with Miller’s somewhat anaemic account of human rights. Unlike utilitarians or contractarians, or even Kantians, Miller does not seem to ground his conception on any particular moral theory. Instead he appeals to the universality of human rights. But his account of human rights is rather empirical, based as it is on the European experience, and thus he might need to work more on that account if it is to support the entire structure of his theory of global justice. Hence my aim here is to show that it is better for Miller to consolidate his account of human rights, possibly by incorporating a ‘capability approach’, in order to remove the problems that undermine the stability of his conception. To that end, I shall bring up two such problems and explain why they are problems (section 2). Then I shall argue that he adopt a capability approach to make both his account of human rights and his conception of global justice more plausible. Indeed, his denial of ‘the intersection approach’ to human need is a good reason for him both to enrich his account and to strengthen his conception (section 3). But before considering them, I shall give a brief overview of his conception of global justice (section1). 1. MILLER’S

CONCEPTION OF GLOBAL JUSTICE

–

A BRIEF OVERVIEW

Although Miller insists on a nationalistic account of global justice, his central theme is not unfamiliar to proponents of global justice, namely, the protection of universal human rights everywhere. This idea is indeed grounded upon the central importance of basic human rights, not upon cosmopolitan utilitarianism or global contractarianism. By incorporating the idea of basic human rights, Miller draws a line between what is acceptable and what is not acceptable as the demands of nationalism. Simply put, special duties to compatriots that may conflict with general duties to fellow human beings are on the whole not to be respected. However, when it comes to the principles of global justice, Miller’ s position is somewhat complex. In fact, he claims to have presented two such principles for a world in which nations engage in international cooperation. They are the universal protection of basic human rights and the fair allocation of the costs and benefits of such cooperation to level the net gain among participating nations.4 From these principles, one can see that Miller’s theory is not only about giving aid to peoples whose human rights are harmed. He has a John Rawls kind of globally extended idea of social cooperation such as Rawls himself did not envision in his own theory.5 Here Miller follows Rawls and Thomas Nagel in rejecting monism, i. e. ‘the idea that the same principle or principles of justice apply no matter what kind of human practice or relationship they are being applied to’, at the same time as he rejects Nagel’s simple dualism, ‘in which principles of socio-economic justice apply only within the boundaries of a sovereign state, while outside those boundaries we have 4 5

David Miller, National Responsibility and Global Justice, in: Nationalism and Global Justice: David Miller and his critics, eds. H. De Schutter and R. Tinnevelt, 2011, 26–27 John Rawls, The Law of Peoples, 1999

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only negative duties of justice plus humanitarian obligations’.6 Accordingly, in line with Miller’s assertion that ‘[q]uestions of distributive justice arise in many forms of human association’,7 with international cooperation being possibly one such association, we may well characterize his position as ‘a multi-level ethical position’ as already suggested elsewhere.8 His theory of global justice, then, has at least two tiers of grounding: one is basic human rights, and the other is the principle of fairness. I shall now focus my attention on the first principle. In Chapter 7 of his book, Miller tries to ‘identify a list of rights that can specify a global minimum that people everywhere are entitled to as a matter of justice’.9 Rights such as ‘rights to life and physical security’,10 ‘health’ and ‘shelter from the elements’11 are supposed to belong in such a list. This idea of basic human rights plays a very important role in Miller’s conception, for it sets a universal standard. Basic human rights are universal rights that people enjoy regardless of nationality. And Miller carefully distinguishes them from what he calls ‘rights of citizenship’, which are supposed to vary from nation to nation. Since their fulfilment is closely related to the idea of a flourishing life, a gap between such rights across nations is not considered a matter of justice on a global scale. But for Miller the protection of basic human rights is a matter of justice. When they go unprotected, ‘any agent, individual or collective, who is able to help protect them may in principle bear remedial responsibilities’.12 Included in such agents are states and international institutions,13 but it is especially ‘rich nations’ which bear such responsibilities.14 Miller apparently holds that someone having a right imposes such responsibilities on the shoulders of others. It is certainly an appealing idea, which even I agree with. Nevertheless, Miller insists that those responsibilities are reduced when poverty-stricken nations have outcome responsibilities, that is, as Miller puts it, ‘where losses are self-imposed, it frees other agents from having to make good the deficit’.15 I believe this is where the problem lies. In one way, his theory contains respect for a nation’s autonomy, while in another, it excuses other nations for their omissions. In this manner, Miller’s conception of global justice relies very much on the idea of basic human rights. But it is not very clear how Miller justifies such an idea though he tries to explain it at some length. In fact, after examining and rejecting two strategies (‘practice-based strategy’ and ‘overlapping consensus strategy’), he invokes what he calls ‘humanitarian strategy’, a strategy to appeal to human needs or to ‘essential features of human life’.16 These needs are taken to be those ‘items or 6 7 8 9 10 11 12 13 14 15 16

Miller (note 1), 277 Miller (note 1), 277–278 Ronald Tinnevelt and Helder De Schutter, Global Justice as Justice for a World of Largely Independent Nations? From Dualism to a Multi-level Ethical Position, in: Nationalism and Global Justice: David Miller and his critics, eds. H. De Schutter and R. Tinnevelt, 2011 Miller (note 1), 166 Miller (note 1), 166 Miller (note 1), 182 Miller (note 1), 164 Miller (note 1), 107 Miller (note 1), 166 Miller (note 1), 108 Miller (note 1), 180

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conditions that it is necessary for a person to have if she is to avoid being harmed’.17 So it seems that his idea of basic human rights, the underlying idea of his entire theory, is deeply connected to the idea of human needs. Yet things get complicated when we learn more about Miller’s ideas. For example, he says that ‘[h]uman beings are social as well as biological creatures, and they can be harmed by being denied the conditions of social existence.’ Fair enough! But he then goes on to say that he will ‘capture this idea by saying that a person is harmed when she is unable to live a minimally decent life in the society to which she belongs’.18 If by ‘the conditions of social existence’ and ‘the society to which she belongs’ Miller means one’s own society or nation, then the content of basic human rights, or, in other words, the global minimum, cannot prima facie be universal, for people are supposed to belong to different nations. Therefore in Miller’s conception, a global minimum cannot be settled upon, unless, as we shall see in section 3, human rights can be conceived in terms of what he calls ‘underlying need’, which, as I argue, leads Miller close to the capabilities approach. 2. TWO

PARTICULAR PROBLEMS

Although there is no doubt that, like Miller, we need to take a nation’s concern for its well-being into consideration, it is, nevertheless, hard to accept his proposition as it stands, and that for two main reasons. Firstly, Miller applies the idea of what he calls ‘outcome responsibility’ so rigorously that the discrimination of cases – cases in which what he calls ‘remedial responsibility’ gives rise to duty of justice and cases in which remedial responsibility does not give rise to duty of justice but is, instead, discharged as a humanitarian duty – seems on balance to favour ‘the rich’ rather than ‘the poor’. This has to do with the fact that what he calls ‘national responsibility’, namely, the idea that a national community is responsible for its own choices and decisions when conditions are met for collective responsibility, is an essential part of Miller’s conception of global justice. He uses this idea to discriminate between cases where duties of justice arise and those where they do not arise, as with, say, outsiders. The difference between the two kinds of duty is not small. In general, humanitarian duties are lighter than duties of justice. Their defaults do not give rise to sanctions by the third parties as in the case of defaults in duties of justice. And although Miller’s purpose with his distinction is ‘to understand the practical implications of allocating them’,19 it may have some unintended effects. That is precisely why Thomas Pogge is pessimistic about the appeal to humanitarian duty or what he calls ‘positive duties’.20 In a more concrete way, Miller seems to have two categories in mind where remedial responsibility gives rise to either kind of duty. In one category, a nation is involved in violating the basic human rights of another nation. For this category, Miller refers to at least two cases. In case 1 (this and the following references are for 17 18 19 20

Miller (note 1), 180 Miller (note 1), 180 Miller (note 1), 248 Thomas Pogge, Real World Justice, in: Current Debates in Global Justice, eds. G. Brock and D. Moellendorf, 2005, 35–36

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the sake of convenience only), when a nation’s past injustice is related to a current human rights violation against another nation, the nation’s remedial responsibility gives rise to duty of justice to a reasonable extent of redress.21 In case 2, when a nation exploits international order as well as people in other nations to the extent that they cannot maintain a global minimum at home, the exploiting nation must discharge remedial responsibility to ‘offer poor societies fair terms of cooperation’.22 In another category, basic human rights are violated in a nation with the nation itself being responsible for it. In such cases, ‘outcome responsibility’, that is, ‘the responsibility we bear for our own actions and decisions’23 cuts in, and the remedial responsibility is primarily imposed on that nation. Since there are various ways in which human rights are violated, the kinds of duties imposed on outsiders also vary. In case A, when a people is unable to have a decent livelihood owing to external factors such as natural disasters and unanticipated economic downturns, remedial responsibilities give rise to duties of justice. Miller explains why discharging remedial responsibilities becomes a matter of justice by saying that if able outsiders (in this case the citizens of a rich nation) fail to meet the human rights of the people, ‘they will infringe those rights’.24 Miller’s moral deduction is that ‘infringing human rights by failing to fulfil them is unjust’.25 In case B, when a dictatorial subgroup in a nation violates the human rights of the exploited majority by ruining the national economy or monopolizing the national wealth, the primary remedial responsibility falls to the subgroup. But when the subgroup fails, the responsibility will be passed on to outsiders as a humanitarian duty rather than as a duty of justice. This is so because ‘one mark of a duty of justice is that it is always potentially enforceable’ by way of sanctions.26 In case C, when a nation for some reason insists on traditional but ineffective methods of agriculture and incurs chronic food shortages, remedial responsibility then falls on the shoulders of outsiders and remains a humanitarian duty for the same reason as in case B. From the distinction Miller draws above, and provided that my reading is correct, one can say that duty of justice applies to only two cases, case 1 and case A, in his theory of global justice. Thus my concern is that, by limiting the cases where duty of justice devolves on able outsiders, Miller’s view might seem unsatisfactory to those whose basic human rights are indeed violated but who are left with little hope for actual assistance for reasons of national responsibility, as well as to those who are concerned with the actual consequences of a conception of justice. The hopeless poor might feel ‘degraded, socially excluded, worthless, etc.’,27 to borrow Miller’s words, by being justified in having little opportunity to be assisted as a matter of justice. This sort of moral sentiments seems to be true of the exploited majority in case B, for they have very few outcome responsibilities for their state of affairs. They have done nothing wrong simply because they have been born into a particular nation, but are still taken to be a liable part of collective responsibility. For them 21 22 23 24 25 26 27

Miller (note 1), 250 Miller (note 1), 253 Miller (note 1), 81 Miller (note 1), 255 Miller (note 1), 255 Miller (note 1), 258 Miller (note 1), 181

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and for the concerned, Miller’s conception may after all not be very appealing. That is why this distinction of cases needs to be reconsidered. The second problem is once again as follows: if most remedial responsibilities are discharged as humanitarian duties, the protection of basic human rights might not be substantial, and, consequently, not enough agencies of individuals might be obtained in poor nations. Without any real agency of individuals and their existence within a nation, it is difficult to impose outcome responsibility on such a nation. This would make Miller’s nationalistic account of global justice unstable as well as untenable. For his conception to work, the global poor need to be real agents, that is, ‘as people who make choices that have implications either for themselves or for others’.28 Thus, Miller’s conception should have the space to ensure that basic human rights are protected everywhere to secure the existence of such agents. One may perhaps suggest that remedial responsibility should at least give rise to the duty of justice in case 2, as against case B, where those nations which fail to offer fair terms of cooperation to poorer nations, could be sanctioned by peaceful methods, say, through democratized international institutions. 3. NEEDS,

CAPABILITIES AND GLOBAL JUSTICE

Supposing that my previous analysis is correct, I suggest that Miller’s conception of global justice might become more plausible if it adopted a capabilities approach. In order to elaborate my proposition, I shall now examine Miller’s idea of basic human rights. As I pointed out earlier, although he considers ‘humanitarian strategy’ to be an absolute condition for minimal human decency, such a condition naturally involves relative components as it is, and thus is unfixed in some ways. In fact, Miller is well aware of this and so suggests that ‘we define the human rights in terms of underlying need, and recognize that what is required, concretely, to fulfil the right can be different in different societies’.29 What is suggested here is that one should list a certain number of underlying needs and then leave to each nation specific ways of fulfilling each such need. Take, for example, the requirement of good health. This need would be fulfilled by perhaps eradicating malaria in some nations at the same time as applying high-level medical services for the cure of cancer in other nations, depending on national environments and circumstances. Miller then insists that, on the ground of basic human rights, we should only see to those basic underlying needs, ‘the conditions for a decent human life in any society’.30 I believe Miller’s strategy with respect to basic human rights is similar to that of the capabilities approach developed by Amartya Sen, and more particularly by Martha Nussbaum, whose ideas he has examined critically elsewhere.31 In fact, I believe he has this approach in mind when he says that human rights are justified because ‘they provide the necessary conditions for such needs to be fulfilled (or, e. g., in

28 29 30 31

Miller (note 1), 5 Miller (note 1), 182 Miller (note 1), 182 Cecil Fabre and David Miller, Justice and Culture: Rawls, Sen, Nussbaum and O’Neill, Political Studies Review 1 (2003), 4–17

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another version of this strategy, for certain human capabilities to be realized)’.32 Moreover, by thus grounding basic human rights, he rejects what he calls ‘the intersection approach to basic needs’, namely, the approach to define basic needs by looking at each society and collecting commonly recognized needs because, as he says, ‘it makes the definition of basic need hostage to what in some cases may be ill-informed beliefs about the conditions for a decent life’.33 This is exactly why the capabilities approach rejects utilitarianism of the sort that counts human essential needs and adaptive preferences equally. Consider, for example, what Miller says about the way to identify basic needs: And here we must appeal to the fact that there are activities that humans engage in that are reiterated across contexts – activities such as working, playing, learning, raising families, and so forth – so that although the form the activity takes may vary from community to community, the activity itself can be described as universal. Let us refer to these as core human activities. Then we can say that a person has a decent life tout court when over the course of her life she is able to engage in each of the core activities, given the conditions prevailing in the society she belong to. She is able to work, play, etc., without having to bear unreasonable costs, and also without having to forgo some other core activity – so that a life would not count as decent if, say, the person in question had an opportunity to work, but only if she gave up the opportunity to raise a family. She may of course choose not to engage in one or more of the core activities, but her life is decent so long as she is able to avail herself of the opportunity if she wants.34

Among the list of such needs, Miller includes food and water, clothing and shelter, physical security, health care, education, work and leisure, freedom of movement, freedom of conscience, and freedom of expression.35 Although Miller would not admit it, the passage quoted above has something of a Nussbaum-type capability approach. The difference between Miller’s need approach and the capability approach seems to be a subtle one, having to do with the way rights are conceived in relation to human agency. For Miller, someone having a right (and a need met) means that they are actually able to exercise that right. For a capability theorist, on the other hand, someone having a right (and a need met) is not necessarily able to exercise that right. She must have capabilities in order to exercise that right. Satisfaction of basic human needs and fulfillment of a certain set of human capabilities are both necessary preconditions for people in order to exercise their human rights. Moreover, Miller’s way of listing key human activities is similar to what Nussbaum calls ‘the thick vague conception of the good’ or ‘internalist essentialism’, the ideas she employs upon justifying her list of central human capabilities.36 Up to now, her list of central human capabilities includes life, bodily health, bodily integrity, senses/imagination/thought, emotions, practical reason, affiliation, care for other species, play, and control over one’s environment.37 These capabilities are supposed to represent what a needy human being qua social and political animal requires minimally in order to live a life of dignity. 32 33 34 35 36 37

Miller (note 1), 168 Miller (note 1), 183 Miller (note 1), 184 Miller (note 1), 184 Martha C. Nussbaum, Aristotelian Social Democracy in: Liberalism and the Good, eds. R. Bruce Douglass et al,1990 & Human Functioning and Social Justice: In Defense of Aristotelian Essentialism, Political Theory 20 (1992), 202–46 Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership, 2006, 76–78

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It is important to note that I am not saying that Miller should adopt Nussbaum’s list of central human capabilities instead of his own list of basic human needs. Nussbaum’s list inevitably contains her ideals, implicitly or explicitly, although she claims it is the outcome of an ethical interpretation of what it means to be a human being in our historical experiences. Indeed, I believe her list is worth critical examination partly because I share her outlook. What I wish to stress here anyway is that Miller’s understanding of human basic needs is also a reflection of his own idealistic view of human decency. If he can say that human beings anywhere, regardless of sex and gender, should be able to “work, play, etc.” as their basic human rights, he must have some reason for saying so, for in many nations women and other minorities have been traditionally deprived of such rights. His idea of basic human needs is conspicuously normative, suggesting that certain cultural traditions in some nations are unrespectable. Hence it is that his idea of basic human rights is open to criticism. One could criticize it for, say, being too ‘Western’. Miller needs to show and convince the rest of the world why certain needs are universal, as he claims, for he bases his conception of global justice primarily on his idea of basic human rights. If, then, Miller did what I have just suggested, I believe his needs approach would approximate something like a Nussbaum-type capability approach. In other words, if Miller were to perceive human beings not only as social animals but also as political animals, as Nussbaum does when, for example, she says that ‘the person is imagined as having a deep interest in choice, including the choice of a way of life and of political principles that govern it’,38 he would add a need (a capability) to choose one’s political environment, whether national or global, to his own list of basic human rights. Then, imposing collective outcome responsibility on a nation in which many of its citizens do not have such a need (a capability) would indeed become difficult. It might seem an impossible step to take for a nationalist, but it would surely increase the number of cases where remedial responsibility gave rise to the duty of justice and hence enhance his conception of global justice. Another possibility is that if Miller were to accept a need (a capability) for altruism as part of human decency (as Nussbaum does by listing such items as senses/ imagination/thought, emotions, practical reason, and affiliation) and were to advocate the securing of such needs as basic human rights, then remedial responsibility might be discharged more or less voluntarily, thereby minimizing the need to impose sanctions on defaulting nations might diminish. Every nation would be expected to encourage its citizens to cultivate benevolent sentiments and a capacity to make the world a better place. If this assumption holds, limiting cases that urgently give rise to the duty of justice might then become unnecessary. CONCLUSION In the present-day world, our social and economic and even political interaction is increasingly becoming global, whereby the mirror that reflects who we are is no longer solely a national one. We also have the delicate issue of the identities of chil38

Nussbaum (Note 37), 88

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dren of international marriages. Thus, although Miller says that at the global level ‘we remain unable to specify what equality (of opportunity) would mean’,39 not only a child in EU but also a child in Mozambique may need to be given an equal opportunity to become a top official of World Bank or IMF. In fact, Miller’s second principle of global justice (the fair allocation of the costs and benefits of international cooperation to level the net gain among participating nations) seems to imply not only ‘cooperative ventures for mutual advantage’ among nations as Miller himself points out,40 but also the existence of global social cooperation. Even if Miller is determined to argue for the ‘separation of social and global justice’,41 he actually indicates the similarity of the two justices by explaining why discharging remedial responsibilities becomes a matter of justice in the light of his moral intuition. To illustrate what he means by moral intuition, Miller takes ‘social justice’ as the example where negative actions give rise to injustice.42 Thus what is social is not necessarily what is national; which is why the idea of global social cooperation may be compatible with a nationalistic account of global justice. Yuko Kamishima Faculty of Commerce, Chuo University 742-1 Higashinakano, Hachioji Tokyo 192-0393, Japan

39 40 41 42

Miller (note 1), 67 Miller (note 1), 278 Miller (note 1), 17 Miller (note 1), 255–226

PART 3 CAPITALISM, CULTURE

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COSMOPOLITANISM

YASUHIKO ITOH, NAGOYA (NAGOYA CITY UNIVERSITY) GLOBAL CAPITALISM

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GLOBAL JUSTICE

INTRODUCTION Intellectual interest has recently grown not only in global justice but also in nationalism. Global justice is always a subject of attention because incidents of profound injustice continue to occur on a global scale. Poverty and wrongful deprivation represent infringements of human rights, and the tremendous disparity in the world (in the so-called “champagne glass pattern”) can be intuitively considered to be the inequality that defies justice. The presence of such injustice requires us to clarify our duty and responsibility in areas beyond our borders. At the same time, the basic political unit is still the nation-state. Thus, the extent of our accountability, or, in other words, the extent of our duty and responsibility to address injustice across borders, remains unclear. This means that we currently face two issues: defining our duty and responsibility beyond our borders and clarifying the extent (or limit) of that duty and responsibility. David Miller presents a balanced argument regarding this problem, objecting as he does to the idea of implementing cosmopolitan equality as a means of eliminating global disparity, while supporting genuine global justice based upon human rights. Moreover, his stance takes into consideration the realities of current international relations. In that respect, Miller’s theory of global justice is likely to become an ethical guideline for international public policies. However, this does not necessarily mean that Miller’s theory of global justice is sufficient to eliminate injustice on a global scale. Major problems exist that cannot be solved even when application of global justice is attempted by regulating the relationships among nations. We will explore the significance of Miller’s theory of global justice and its limitations by considering problems concerning the subject of global justice and the difference between global and international justice. 1 VIOLENCE

OF

GLOBAL CAPITALISM

Major factors behind the developing interest in global justice include injustice on a global scale and globalisation. The world is changing because of the flow of people, assets (and capital) and information across national borders. One of the forces promoting the process of globalisation has been the expansion of the market economy on a global scale since the end of the Cold War. In order to assess global justice, we must first examine the globally expanding market economy. Modern problems of world poverty differ greatly from those in the past because poor nations and regions are now closely linked to wealthy nations. Understanding these connections is a starting point for evaluating global justice. Miller states that ‘the market has a structure and a logic’1. While this statement relates to the domestic market of a nation, it presents an appropriate place at which 1

David Miller, Market, State, and Community: Theoretical Foundations of Market Socialism, 1989, 93

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to begin the evaluation of the market. In a marketplace, each party seeks its own private interests. Adam Smith characterises the pursuit of private interests to realize public good as ‘the invisible hand of God’. This is an appropriate view of the market. The market, however, engenders not only public good but also great injustice, especially inequality and serious poverty, through the interactions that occur there. In other words, the cumulative result of the (innocent) pursuit of private interests is the promotion of injustice or public evil. Justice in a market society must commence with the correct assessment of the structure and logic of the market. With respect to the injustice that is generated as the cumulative result of the pursuit of private interests, no agent exists that clearly bears the burden of the responsibility for the outcome and for providing aid (outcome responsibility and remedial responsibility). Miller states: ‘A can be the outcome responsible for P’s condition without being morally responsible for it. This will be the case, for example, if P’s deprivation is a side effect of some action of A’s that is neutral or even justified’2. This statement defines the cumulative outcome of innocent activities by individual parties as ‘a side effect’ and appears to be an appealing argument that points up responsibility for the outcome. However, who will bear the responsibility for the outcome? Poverty that results from market interactions is not a side effect of a specific party’s actions, but something that is caused by massive interaction within the market. If that is the case, should all participating members of the market bear the burden of the responsibility for the outcome? Miller identifies one limitation to the outcome responsibility in the market by saying that ‘if the costs are heavy’3 for losers in the market, there will be responsibility for remedy. In other words, if someone’s income were reduced by a mere few cents as a result of market interaction, he or she would not seek financial aid. On the other hand, those who fall into extreme poverty as a result of market interaction would be justified in seeking financial aid. However, it is unclear how much of the loss would fall under the remedial responsibility, or who would determine that amount. Problems of the global market economy are even more complex. Let us accordingly consider three such problems. First is the global flow of speculative money. Speculation is now the operative force behind pension funds for retirees in wealthy nations. Stocks and government bonds, as well as natural resources such as crude oil, and food commodities such as sugar and grain, have become objects of speculation. Speculative money affects not only the lives of the people in wealthy nations but also those of the people in developing or poor nations because speculation may lead to an increase in, say, grain prices. Who will bear the responsibility for the degeneration of a poor nation as a result of rising grain prices? Second, ‘sweatshops’ pose a serious problem. Some of the affordable food and clothing that support the lives of the citizens of wealthy nations is produced in ‘sweatshops’ spread across developing countries. Production of inexpensive products for wealthy nations is made possible by low wages and long hours offered by

2 3

David Miller, National Responsibility and Global Justice, 2007, 100 Miller (note 2), 101

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‘sweatshops’4. If contracts between labourers and owners of ‘sweatshops’ are legal, who, then, will assume the responsibility for these cruel labour conditions? Or will there be no responsibility for aid because costs are not heavy? Third is the problem of resources. In his critique of ‘equality of national resources’, Miller says that ‘natural resource values – the values of unimproved sites – are not set by nature itself, but almost entirely by human decision and behaviour’5. He states that converting natural resources into valuable entities requires the influence of each nation. This argument is valid. However, in the case of the copper mines of the United Republic of Tanzania, the nation that owns the resource (Tanzania) is awarded only a small percentage of the premium for mining the resources, with most of the profit being reaped by wealthy nations’ industries that supply the technology. Legal agreements are made between the resource-possessing countries and technology-providers. Nevertheless, if Tanzania acquires only a small percentage of the premium and, as a result, is unable to extract herself from her poverty, who will accept responsibility for this? If these three problems exacerbate the economic state of a poor country, it may be possible to clarify the locus of responsibility: global finance capital in problem one, the multinational enterprises that purchase products manufactured in the ‘sweatshops’ in problem two, and the enterprises operating Tanzania’s copper mines in problem three. However, there is no doubt that the actors to whom this responsibility is attributable would retort with the claim, ‘We are engaging in a legal economic activity’. Furthermore, the citizens of wealthy nations in these examples are also benefiting to some degree, and it can be said that, as a side effect of the economic activity by citizens of wealthy nations, the conditions in poor nations are exacerbated. That is why it is difficult to determine the locus of responsibility for costs incurred as a side effect of economic activities and the outcome responsibility in the market. Global capitalism and its global market also cause another problem. This problem is related to Marx’s assertion that capital ‘has given a cosmopolitan character to production and consumption in every country’, and his statement that, as production and consumption become cosmopolitan, so ‘the intellectual creations of individual nations become common property. National one-sidedness and narrowmindedness become more and more impossible, and from the numerous national and local literatures, there arises a world literature’6. ‘A world literature’ is an extremely cynical view, but considering the standardisation of cultures around the world by the present global capitalism (such as global dominance by Hollywood films and McDonald’s), it can be said that cultural individuality, the foundation of nations, is beginning to deteriorate. Furthermore, global capitalism creates an internal divide within nations. Some individuals make enormous profits through the global market, while others within the same nation are completely excluded from the benefits of the global economy. Consequently, poverty exists within wealthy nations. Those who profit establish a global network and pressure other national governments into making further neo4 5 6

See Naomi Klein, No Logo, 1999. Miller (note 2), 60 Karl Marx, The Communist Manifesto, Karl Marx Selected Writings (ed. by McLellan), 1977, 224

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liberal policies. Those who do not reap any benefits seek financial aid from their governments and demand the reform of global capitalism. While nations may remove this divide through prudent policy-making, it cannot be denied that the unity which nations once had is deteriorating as globalisation spreads wider. But, while global capitalism exacerbates poverty, it also severs the social solidarity that in the past constituted the foundation of nations, thus further aggravating the living conditions of many people. The effects of global capitalism can be described in Johan Galtung’s words as ‘structural violence’7. 2 THE SUBJECT

OF

GLOBAL JUSTICE

Miller recognises the negative effects of global capitalism on those living in poverty around the world, and includes a type of reform of global capitalism within his ‘remedial responsibility’. Miller states: [A] fair international order cannot simply mean a free market in which nations and corporations pursue their interests without regard to the consequences for vulnerable poor people. The responsibility of citizens of rich countries is to ensure fairness in this sense – an international order whose rules allow poor societies adequate opportunities to develop.8

Establishing a fair order for the global economy is an important measure in providing assistance to the poor in the world. I believe that the assertion that ‘vulnerable poor people’ should be considered in global relations is just. However, the two forms of ‘remedial responsibility’ as suggested by Miller – the retrospective responsibility to remedy the effect of past injustice and the responsibility that is engendered by the bare fact of poverty itself – are entirely different levels of the burden of the responsibility. If the establishing of a fair order for the global economy is desirable, why should citizens of wealthy nations bear the responsibility for this? As stated earlier, the market functions through complex interactions. Poverty is not directly engendered by a specific party’s actions or by the side effects of those actions. In addition, global capitalism causes poverty within wealthy nations. As stated earlier, global capitalism also engenders an internal divide between the citizens of wealthy nations. In view of these facts about global capitalism, taking remedial responsibility as the primary subject for the reform of global capitalism is neither desirable nor realistic. Rather, it is better to take the global market itself as the primary subject of justice and design a plan for reform on this basis. As regards the primary subject of justice, John Rawls makes the following statement: [T]he primary subject of justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantage from social cooperation. […] the major institutions define men’s rights and duties and influence their life prospects, what they can expect to be and how well they can hope to do. The basic structure is the primary subject of justice because its effects are so profound and present from the start.9 7 8 9

Johan Galtung, Violence, Peace, and Peace Research, in: Journal of Peace Research 3 (1969) Miller (note 2), 253 John Rawls, A Theory of Justice: Revised Edition, 1999, 6

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Rawls asserts that the primary subject of justice is the basic structure of society, and that competitive markets fall under that category. If the effects of global capitalism expand competitive markets to a global scale, it can be said that one of the basic structures of a global society is the global market. As Rawls points out, these structures greatly affect people’s perspective of life, which cannot be justified under principles of merit and desert. That is why Rawls deems the basic structure of society to be the primary subject of justice, and attempts to devise just institutions to regulate it. The same can be said of the global market. Poverty and inequality do not constitute injustice because they are engendered by the actions of a specific party. In fact, markets by nature inevitably produce poverty and inequality and turn a blind eye to these issues, which is unjust. In addition, the violence of the market affects everyone. Indeed, the effects of the global market make the future uncertain even for those living in wealthy conditions at present. In a word, everyone is in danger of severe deprivation. Reforming the global market and establishing a ‘fair order’ are in the interest of everyone involved with the global market. Another issue that deserves careful consideration is that of national identity. A reduction in the influence of global capitalism is also important because the system demolishes national identities. Regulation of the global market would put a stop to the ever-expanding destruction of national identity. In the current state of global capitalism, global justice must strengthen nations rather than build upon nations. Miller asserts social justice as a context-dependent norm. As he says: ‘I am assuming something about justice in general, namely that the principles that tell us what counts as just distribution of some good are specific to the context in which the distribution is taking place’10. Indeed, social justice is context-dependent. However, the relationship (context) between people in the market is considerably different from other relationships. In capitalist societies, market relationships dictate cultural individuality such as families, organisations and citizens and transform them. Capitalist market relationships transform cultural individuality into exchange-value and engender great injustice through the cumulative effect of market interaction. This relationship is currently expanding globally. Regulation of this special relationship, the removal of poverty and extreme inequality, and the protection of national individuality are the focus of global justice. As globalisation spreads, so the subject of justice and the context of justice both become relevant to the global market. 3 GLOBAL JUSTICE

OR

INTERNATIONAL JUSTICE

The title of Miller’s admirable book, National Responsibility and Global Justice, was translated into Japanese as What is International Justice?, with the term ‘international justice’ substituting ‘global justice’. This switch in terminology is, to my mind, an appropriate attempt to interpret Miller’s notion of justice as one that transcends national borders. Miller’s notion of justice is an appealing norm based on the reality of international relationships. However, this interpretation only covers one aspect of international relationships, that is, the relationship between nations (or nationstates). 10

Miller (note 2), 13

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When Miller criticises global egalitarianism, he does so from two standpoints: ‘the metric problem’ and ‘the dynamic problem’. This criticism is very convincing. The dynamic problem’s basic assumption is a worldview of ‘a world made up of separate societies each of which aspires to be self-determining’11. This world (according to Miller’s interesting fable) consists of independent societies such as Affluenza, Ecologia, Procreatia and Condominium. This world, in which each independent society (most such societies being nation-states) is self-determining and seeks its selfinterest, delightfully evokes the real world. While this description was sufficient for the world in the past, in which the Westphalia System functioned scrupulously, this is no longer the case in the modern world. Modern international relationships are different from those of the Westphalia System, the biggest difference being that actors other than nations are now involved in international politics. These actors are the United Nations (UN), international organisations such as the World Trade Organization (WTO), supranational organisations such as the European Union (EU), multinational corporations and transnational organisations like nongovernmental organisations (NGOs). Although nationstates still hold sovereignty in their own territories, international relationships in reality consist of a complex system involving actors other than nations12. Thus, the fate of a nation is sometimes determined by actors other than nation-states. One of the forces contributing to the complicated international relationships described above is global capitalism, as has been emphasised in this essay. Actors other than nation-states are working to decide how global capitalism should be regulated or who will benefit from it, and in what form. Of course, these actors are not working for the purpose of reforming global capitalism towards justice. Rather, the opposite is true. For example, financial aid given by the International Monetary Fund (IMF) to developing or poor nations is bound by strict conditions (conditionality), which destroy the economic systems that recipient nations have built over time. Not only are these systems undermined, but (neo-liberal) economic reforms that benefit wealthy nations are also imposed on developing nations. Along with global markets, the subject of justice must also include these international systems. A concept of justice that encompasses the global market and in11 12

Miller (note 2), 68 Thomas Pogge states that together with the poor, we ‘coexist within a single global economic order that has a strong tendency to perpetuate and even to aggravate global economic inequality’. Pogge’s point is accurate in his identification of the global economic structure as the subject of global justice. See, Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reform, 2008. For a well-founded identification of global institutions as the subject of justice, see Allen Buchanan’s following statement: ‘There is a global basic structure. Its existence and major features are documented in a vast and growing interdisciplinary literature that goes under various headings: globalization, structural dependency, and theory of underdevelopment. Among the elements of the global basic structure are regional and international economic agreements(including the WTO, NAFTA, and various European Union treaties), international financial regimes(including the International Monetary Fund, the World Bank, and various treaties governing currency exchange mechanisms), an increasingly global system of private property rights, including intellectual property rights that are of growing importance as technology spreads across borders, a set of international and regional institutions and agencies that play an important part in determining the evolving character of all the preceding elements of the global basic structure(the meta-structure of global basic structure).’ Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law, 2004, 213–14.

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ternational systems, not just relationships between nations, is true global justice. Miller’s global justice is a powerful model, but because it is based on relationships between nations, it is inadequate for the eradication of injustice on a global scale. In this respect, it is more appropriate to call it ‘international justice’ rather than ‘global justice’. Whether we use the term ‘global justice’ or ‘international justice’, however, the issue is not to do with such designations. It is, rather, an issue of how the source of injustice in global society should be interpreted, and what will be targeted for the purpose of eradicating injustice. Relationships between nations, as Miller states, will remain important in international societies. However, while there are global problems that cannot be resolved through international relationships, those very problems must also be included in the subject of global justice.

CONCLUSION : THE OTHER MEANING

OF

COSMOPOLITANISM

In this essay I have asserted that the subject of global justice must consist of the global market as well as global institutions formed alongside it. Global injustice cannot be eradicated without an accurate grasp of its nature. Inclusion of the global market in the subject of justice completely alters the argument concerning responsibility. As mentioned earlier, it is difficult to determine who should bear the responsibility for market outcomes. At the same time, everyone can become a victim of the injustice engendered by its inevitable effects. Indeed, while it is true that calamity is concentrated on poor nations in the modern world, it is also true that the effects of the global market are also causing bankruptcy, unemployment, wage reduction, poverty and deprivation in wealthy nations. The global market has the potential to generate unprecedented prosperity for humankind, at the same time as it poses a great risk that could potentially befall anyone in the world. Appropriate regulation of the global market is necessary to minimise this risk. If a ‘fair international order’ materialises as an international system, many individual parties will be held responsible for their self-serving actions under such circumstances. Regulation of the global market, or a ‘fair international order’, as Miller puts it, may signify the responsibility that citizens of wealthy nations have for the poor nations. However, considering the fact that all actors in the global market face the same risk, it can be considered a subject for every participant in the global market. If the term ‘responsibility’ must be used, it is not as ‘remedial responsibility’ but as ‘responsibility for reform’. The step to be taken towards the reform of the global market is the creation of a new global governance. We should create a system in which those who have reaped the benefits of the global market economy by acquiring relative wealth (although they have no outcome responsibility in the strict sense of the word) are liable for a fair share of the burden for the global poor. If this system is successful, a sense of trust that transcends borders could perhaps be fostered. That is, it would be the bond of justice that engenders trust, not the bond of trust that leads to justice. This type of system is already partially in operation in the form of an international solidarity levy. Moreover, the possibility of a Tobin tax is also being explored.

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Marx asserted that capitalism spread cosmopolitanism throughout the world. Global capitalism is cosmopolitanism accompanied by structural violence. The damage inflicted by this violence is being felt beyond national borders. In other words, global capitalism is putting the fate of everyone in the world in jeopardy. We all share in the common fate that transcends national boundaries. The collective of people bound by the same fate can be considered to be a cosmopolitan one. We do not become cosmopolitans so much as we are forced to be cosmopolitans. The solidarity of those who are vulnerable to the effects of global capitalism, that is, the solidarity of cosmopolitans, can bring about reform, the principle underlying such solidarity being global justice itself. Yasuhiko Itoh School of Humanities and Social Sciences, Nagoya City University 1, Yamanohata, Mizuho-cho, Mizuho-ku, Nagoya, 467-8501 Japan

TERUHISA SE, FUKUOKA (KYUSHU UNIVERSITY) THE PREREQUISITES ON HUMAN RIGHTS FROM

A JAPANESE

OF

CROSS-CULTURAL DIALOGUE

PERSPECTIVE

1. INTRODUCTION Problems concerning human rights and culture have recently become a main subject of debate in political theory. On the one hand, the idea of human rights needs to be universal in order to protect the interests of all people as human beings. On the other hand, to be globally accepted, it has to be sensitive to the diverse cultural contexts of all countries. Without cultural sensitivity, the idea of human rights can often become a target of criticism, as some political leaders of non-Western nations sometimes complain to Western governments about what they see as the Westernbiased human-rights diplomacy. David Miller’s arguments on human rights as developed in his National Responsibility and Global Justice1are insightful in considering the balance between universality and cultural sensitivity. This essay aims to examine Miller’s arguments on this topic and to explore the conditions necessary for ensuring global applicability of the human rights ideal, while giving sufficient consideration to its cultural sensitivity. In the next section, I provide an overview of Miller’s arguments, particularly those presented in the seventh chapter of his book mentioned above. The third section reflects on the conditions necessary for ensuring global applicability of the idea of human rights without losing its cultural sensitivity. I emphasize the importance of a pluralistic world order in which many intellectuals, capable of fully developing their thoughts in their respective languages, can emerge in every nation around the globe. In other words, I would argue that it is not until each nation develops the intellectual quality of its own national language and culture and modernizes its society on these cultural bases that we shall have the prerequisites for exploring a truly universal notion of human rights. In addition, in the fourth section, I would like to point out that Western theorists, including Miller himself, generally tend to lack awareness of the significance of national cultures in supporting liberal principles when they consider the modernization or the liberalization of non-Western societies, and that this lack of awareness might be due to an insufficient understanding of the crucial role that national cultures have played in the development of modern Western societies. 2. MILLER’S ARGUMENTS

ON

HUMAN RIGHTS

AND

CULTURE

Miller’s basic perspective on human rights is that they are an important element of global justice. Miller thinks that the notion of human rights should indicate the minimum standard of living that must be guaranteed to everyone all over the 1

David Miller, National Responsibility and Global Justice, 2007

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world2. It means that, if there are some people living below the minimum standard in certain countries whose governments are not capable of improving their people’s situation, other actors like richer countries have to take responsibility for remedying the situation. In dealing with the idea of human rights as a matter of global justice, we need to pay attention to the balance between universality and cultural sensitivity. From a humanitarian viewpoint, those who live below the minimum standard of living and whose basic rights are violated must be saved, regardless of their nationality. The idea of human rights is assumed to express a sense of moral urgency and to motivate every actor to safeguard them. At the same time, cultural diversity should be respected. Interventions and aids, which are sometimes said to be necessary for rescuing people whose basic rights are violated, should not be carried out in such a way as is biased in favour of a particular cultural view or as unduly undermines the sovereignty and the cultural autonomy of the country. For the idea of human rights to work as a reasonable criterion of global justice, it needs to be based on a conception of the moral minimum per se, which is recognized as a common requirement across cultures and can be readily accepted by people from different cultural backgrounds. Some traditional theories of human rights invoke assumptions that are now and then criticized as ‘theological’, such as ‘human dignity’ and ‘human intrinsic value’, whose moral power seems to be limited to Christian cultures, and lack consideration for cultural sensitivity3. However, human rights theorists in recent years have been taking more and more seriously the problem of how to give appropriate consideration to sensitivity to cultural differences. Miller reviews existing arguments on human rights and cultures, and shows his own approach to justification for human rights in the seventh chapter of National Responsibility and Global Justice. He breaks these arguments down into three strategies: (1) practice-based strategy, (2) strategy based on overlapping consensus, (3) strategy based on basic needs.4 The first practice-based strategy proposes that we have already reached a basic consensus on the importance of human rights, at least at a practical level. According to theorists adopting this strategy, even if there is no agreement among cultures on the philosophical reasons why human rights need to be respected, a formal consensus has already been obtained, as is shown in some international laws and various international documents such as the Universal Declaration of Human Rights. Thus, this strategy argues that it is not necessary to explore the philosophical or theoretical basis for human rights, since the norm of human rights works well without any practical difficulty. Miller questions the validity of this view, pointing out that it is rash to assume that a consensus on the value of human rights has already emerged even at a practical level, because, in view of the actual circumstances of international politics, interpretations of international laws and human rights documents are still too divergent to suggest that there is any effective consensus.5

2 3 4 5

See Miller (note 1), 166–167. For a criticism of ‘theological’ justifications for human rights in the tradition of Western political theory, see Benjamin Gregg, Human Rights as Social Construction, 2012, ch. 1. See Miller (note 1), 168. See Miller (note 1), 169–172.

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Miller divides the arguments of the overlapping consensus strategy into two variants. Michael Walzer is regarded as one of the leading theorists in favour of the first variant. This is an attempt to specify the norm whereby global consensus on human rights can be achieved, by collecting different norms in different cultures and confirming that every culture respects some norms that are not human rights in themselves but are functionally equitable. Miller is sceptical of the validity of this variant, and raises a question concerning the rights of outsiders.6 According to Miller, quite a few societies neglect the rights of outsiders, while exclusively respecting the rights of the members of their own society (class, tribe, sect, etc.). Even if most cultures actually protect the rights of their own members, this protection often does not apply to outsiders. Hence, Miller suspects that this variant, based as it is on the notion of overlapping consensus as put forward by Walzer, cannot fully secure the moral grounds for human rights. The other variant of the overlapping consensus strategy postulates moral grounds for human rights by picking out some appropriate ethical elements from non-Western philosophical or religious traditions. Miller mentions, for example, Charles Taylor’s argument that a strand of reformed Buddhism, which has gained adherents in Thailand, contains a doctrine of non-violence that can be a basis for human rights.7 Miller indicates that such arguments do not really start with the philosophical or religious traditions in question as a whole but only conveniently select a small portion of them, and that such a selective interpretation cannot provide stable bases for human rights that would be readily acceptable to people in those traditions. After pointing out the flaws of these two strategies, Miller advocates the third strategy, the one based on basic human needs. It must be noted that he divides human needs into two kinds: ‘basic needs’, which are common to all cultures, and ‘societal needs’, which are specific to each culture.8 He regards basic needs as constituting the appropriate foundations for human rights, since human rights must be universally valid. On the other hand, he states that ‘societal needs’ should be taken as constituting the foundations for citizenship rights, which are unique to each culture and need to be guaranteed by each society. Miller argues that there are two approaches to identifying ‘basic needs’. He calls the first an ‘intersection approach’. This requires us to ‘look at each society in turn, and ask how its members define the conditions for a “decent life”, and thereby define “societal needs”’9. Then, we have to specify what all these definitions have in common in order to clarify the notion of ‘basic needs’. Accordingly, with this approach, ‘basic needs’ are defined as the intersection of all sets of societal needs. Miller does not think much of this approach. Indeed, he contends that there are some societies in which certain ‘basic needs’ are obviously neglected because of the prevalence of ill-informed beliefs about the conditions for a decent life. According to Miller, this is clearly shown when what is at stake are the needs of women. Miller argues that ‘members of some communities, including female members, may be6 7 8 9

See Miller (note 1), 174. See Miller (note 1), 174–178, and also Charles Taylor, Conditions of an Unforced Consensus on Human Rights, in: The East Asian Challenge for Human Rights, eds. J. R. Bauer and D. A. Bell, 1999. See Miller (note 1), 182–183. Miller (note 1), 183

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lieve that women can have a “decent life” in the absence of certain essential conditions – access to contraception, or the opportunity to take paid work, for instance’.10 Miller repudiates this intersection approach because it cannot rule out such cases that are brought about by the prevalence of ill-informed beliefs. That is why Miller argues for the necessity of a more objective approach. He maintains that we should not uncritically accept what people in each society regard as ‘decent lives’ and ‘human (societal) needs’, but ‘try to determine what is actually necessary for people to lead decent lives in different cultural contexts’.11 In his opinion, we should appeal to ‘the fact that there are activities that humans engage in that are reiterated across contexts – activities such as working, playing, learning, raising families, and so forth’.12 He understands that, although the form an activity takes may vary from community to community, the activity itself can be described as being universal. Miller calls these activities ‘core human activities’ and regards them as being essential to a ‘decent life’. He claims that we should derive a conception of human needs from the notion of a ‘decent life’. This suggests that Miller is arguing for the importance of revaluating the idea of human needs in each society. That is to say, people in each society should critically scrutinize their current conceptions of ‘decent lives’, ‘societal needs’, and ‘basic needs’, with reference to the ideas of ‘core human activities’, which are assumed to exist across cultural contexts, redefine them, and, where necessary, compensate for deficiencies in such needs. What Miller seems to be saying is that people in every culture, including those in the West, should not uncritically accept their own current ideas of ‘decent lives’, ‘societal needs’, and ‘basic needs’, but continually engage in the search for more desirable forms of these ideas. In other words, Miller regards the ideas of ‘decent lives’ and ‘basic human needs’ as so-called ‘regulative ideas’, which is why he emphasizes the need for members of each society to take a critical attitude towards the current forms of those ideas. 3. PREREQUISITES FOR APPROPRIATE DIALOGUE ACROSS CULTURES: THE NECESSITY OF INTELLECTUALS CAPABLE OF THINKING IN THEIR INDIGENOUS LANGUAGES So far I can say that I agree with Miller’s arguments, that is to say, I approve of the way he specifies a conception of human rights appropriate for a constitutive element of global justice by regarding the ideas of ‘decent human lives’, ‘human needs’, and ‘basic needs’ as kinds of ‘regulative ideas’ and by advocating the continual need to revaluate these existing ideas in various societies. I also think that Miller is very reasonable in his notion of human rights as being balanced between universality and cultural sensitivity in so far as he divides ‘human needs’ into ‘basic needs’ and ‘societal needs’ and regards them as the foundations of human rights and citizenship rights respectively. However, it is useful to point out here that comparisons with various other cultures are still essential in order to identify the contents of ‘basic needs’. As Walzer 10 11 12

loc. cit. Miller (note 1), 184 loc. cit.

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argues, thin moralities are necessarily derived from a comparison of thick moralities.13 Miller’s critical attempt at identifying basic needs cannot dispense with this process of comparison and examination. Conceptions of a ‘decent life’ or ‘human needs’ formulated within cultures through critical thinking have to be mutually compared and examined, and ‘human needs’ have to be divided into ‘basic needs’ and ‘societal needs’ in this process of comparison and examination across cultures. Without this process, we cannot judge whether a conception of ‘basic needs’ has a truly cross-cultural validity or provides an appropriate ground for human rights.14 Thus, we need to explore the prerequisites for such a cross-cultural comparison and examination. However, it seems that such an exploration hardly figures in Miller’s arguments. I would, therefore, like to consider the conditions for cross-cultural comparison and examination as a means of clarifying basic human needs. What to my mind is most important is that intellectuals of all nationalities should engage in highly critical thinking in their own languages. For what is experienced by each nation can often only be precisely expressed in its particular language. For example, there are some notions such as ‘self ’, ‘person’, ‘maturity’, ‘selfactualization’ and ‘growth’, that are closely related to our understanding of a ‘decent human life’, ‘human needs’ and ‘basic needs’. Such concepts are often too difficult to grasp unless they are couched in a particular local language. Accordingly, unless there are intellectuals who can engage in highly intellectual and critical thinking by making use of these culturally determined notions, it would be impossible to formulate local conceptions of a ‘decent life’ and ‘human needs’ and scrutinize them. It would also be impossible to have genuinely cross-cultural deliberation in the search for a global conception of basic human needs. The difference between Japan and Western countries as to notions of the self and self-actualization provides a good illustration of the need for indigenous languages to be employed in a cross-cultural examination of conceptions of a ‘decent life’ and ‘human needs’. Indeed, it is this very difference that prompts me to advocate the need for local intellectuals capable of putting forward these ideas in their own native languages.15 A good many studies have pointed out that there are some differences between Japan and Western societies as to the concept of the self.16 For example, Hazel R. Marcus and Sinobu Kitayama, American and Japanese social psychologists respectively, describe the view of the self dominant in Western culture (particularly in the mainstream culture of the United States) as the ‘independent construal of the self ’, and the one prevailing in East Asia, including Japan, as the ‘interdependent con13 14 15

16

See Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad, 1994, 13. D. A. Bell’s arguments are insightful in this point. See Bell, East Meets West: Human Rights and Democracy in East Asia, 2000, ch. 1., esp., 95–103. I and Karatsu proposed a conception of human rights on the basis of some aspects of Japanese culture, particularly paying attention to the differences in the views of the self and self-actualization between the West and Japan. See Teruhisa Se and Rie Karatsu, A Conception of Human Rights Based on Japanese Culture: Promoting Cross-Cultural Debates, Journal of Human Rights, 3(3) (2004). Examples of the differences mentioned below are discussed more closely in the above article. For a brief review of numerous studies on the view of the self predominant in Japanese culture, see Nancy R. Rosenberger, Introduction, in: Japanese Sense of Self, ed. Rosenberger, 1992.

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strual of the self ’.17 The most significant difference between the two conceptions is the degree to which the self is assumed to be separate from others and the surrounding situation. With an independent construal of the self, the extent of subjective distance a person takes from others and his/her situation is relatively great. Thus, the person is likely to perceive him/herself as a self-contained entity separate from others and his/her surroundings. A person with an independent self tends to define him/herself in relation to some internal attributes that are considered to be relatively invariable, such as his/her abilities, talents, motivations, desires, and character traits; whereas a person with an interdependent self tends to be have less distance from others and his/her surroundings. In other words, the interdependent self tends to be closely tied to others and the surroundings and is defined with reference to relationships with others and encompassing circumstances, and a person with such a self perceives the surroundings and relationships as important elements that constitute him/herself. Many scholars have pointed out that these notions of the self are maintained and reproduced by linguistic custom both in Western and Japanese societies. For instance, the linguistic sociologist Takao Suzuki and the psychiatrist Bin Kimura mention differences in the usage of personal pronouns and clearly demonstrate the close connection between the notion of the self and linguistic habits.18 Most European languages, including English and Latin, have only one first-person pronoun and one or two second-person pronouns. In contrast, Japanese has multiple firstand second-person pronouns: first-person pronouns = watakushi, boku, ore, washi, shosei … ; second-person pronouns = anata, kimi, omae, kisama, otaku … Those words must be properly chosen and used in accordance with the situation in which the dialogue is taking place and the relationships between the speaker and his/her interlocutors. In addition to these personal pronouns, ‘kinship terms’ and ‘status and occupational terms’ are often used to denote the speaker and the addressee. For instance, in many Japanese families today, fathers identify themselves in conversation with their children as ‘otosan’ (father) or ‘papa’. Teachers in primary or secondary schools usually speak of themselves as ‘sensei’ (teacher) when addressing their pupils. Again, when denoting the addressee in conversation, the speaker, in most cases, uses the words which identify social roles in a family or a workplace such as ‘sensei’, ‘kacho’ (section-chief), or ‘onechan’ (older sister). It is more usual in Japanese conversation for a speaker to use such ‘status and occupational terms’ or ‘kinship terms’ when denoting him/herself and the addressee, than to employ first- and second-person pronouns. Both Suzuki and Kimura state that these linguistic characteristics are closely linked to the view of the self. In cultures with languages in which the speaker almost invariably identifies him/herself by using a first-person pronoun (e. g. ‘I’ or ‘ego’), as one does in most Western European languages, ‘the speaker’s linguistic self-identification is conducted autonomously and independently, without reference to the

17 18

See Hazel R. Marcus and Sinobu Kitayama, Culture and the Self: Implications for Cognition, Emotion, and Motivation, Psychological Review, 98(2) (1991). See Bin Kimura, Hito to Hito to no Aida [Between Persons], 1972 and Takao Suzuki, Language and Behavior in Japan: the Conceptualization of Personal Relations, in: Japanese Culture and Behavior, eds. T. S. Lebra and W. P. Lebra, 1986.

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addressee or to surrounding circumstances’19. ‘The fact that there is only one firstperson pronoun means that the self always remains an invariable entity, irrespective of the situation.’20 Thus, it can be said that in such cultures the self is defined prior to, and independently of, the speaker’s perception of the situation and the relationship with others. By contrast, in Japan, where the speaker has to make proper and flexible use of the words pointing to him/herself with reference to the addressee and the surrounding circumstances, the speaker’s self-identification is not made until he or she recognizes his/her relationship to the addressee and the context. ‘In the Japanese language, indeed, in the Japanese way of thinking, who I am and who the addressee is, are always determined according to the relationship between the addressee and me.’21 That is to say, Suzuki and Kimura maintain that these characteristics of Japanese reflect the interdependent view of the self predominant in Japanese culture, which considers the self as being relational and situational. Thus there is a considerable difference in the notion of the self between Western and Japanese societies, which has deep roots in the linguistic customs of each society. Naturally this difference strongly affects concepts of decency and human needs, and makes them unique to each linguistic region. For instance, the socio-psychological studies of Kitayama and his colleagues deal with differences in the view of the process of self-actualization between the cultures in which independent construals of the self dominate (e. g. the United States) and those where interdependent construals do (e. g. Japan).22 According to them, in a culture where an independent construal of the self pervades, the process of self-actualization tends to be regarded as one in which a person discovers, confirms and expresses his/her positively valued inner attributes (e. g. abilities, talents, or personality traits). Whereas, in a culture where an interdependent construal of the self is widespread, the process of self-realization tends to be understood as one in which a person internalizes the views and expectations of various others towards him/herself, discovers his/her own shortcomings through self-reflection with reference to those internalized views and expectations, eliminates the shortcomings, and actively explores truly harmonious relationships with his/her the surroundings.23 Languages are also important in identifying those different processes of self-actualization and the necessary conditions for advancing those processes. Terms such as ‘autonomy’, ‘free will’, and ‘choice’ may be essential to Western conceptions of self-actualization, and these words must be also indispensable means of articulating the necessary conditions for following this process. Likewise, there are critical words for understanding a Japanese conception of self-actualization, ‘sunao’ being one such word. As the Japanese psychiatrist Takao Murase notes, this word denotes a psychological virtue that is widely considered in Japanese society to be essential for

19 20 21 22 23

Suzuki (note 18), 148 Kimura (note 18), 137 Kimura (note 18), 142 See Sinobu Kitayama and Hazel R. Marcus, The Pursuit of Happiness and the Realization of Sympathy: Cultural Patterns of Self, Social Relations, and Well-Being, in: Culture and Subjective Well-Being, eds. E. Diner and E. M. Suh, 2000, 113-161. See, for a more detailed argument about the view of the process of self-actualization predominant in Japan, Se and Karatsu (note 15), 276–281.

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smoothly advancing the process of the actualization of the self.24 ‘“Sunao” implies the harmonious and natural state of mind vis-à-vis oneself and others. It is directly associated with honesty, humility, docility and simplicity. Although these qualities are not necessarily valued positively in Western culture, in Japanese culture sunao is an extremely important positive value.’25 As Murase says, because English does not have an appropriate word for expressing all the connotations of sunao,26 the term has to be explained in detail in English. I would now like to draw attention to the idea of local intellectuals thinking in their native language when formulating the conceptions of a ‘decent life’ and ‘human needs’ in society. As the examples mentioned above have shown, notions of the self and self-actualization predominant in Japan are difficult to identify unless the Japanese language is used to carry such notions. It is also considered difficult to understand Japanese conceptions of a ‘decent life’ and ‘human needs’ without employing the Japanese language, since the notions of the self and self-actualization are closely connected to these conceptions. No doubt, it is possible to explain these conceptions by using foreign languages after such conceptions have been formulated. However, it is almost impossible to understand them fully in languages other than Japanese since they are in the form of intuitions that ordinary Japanese people share and understand among themselves. Needless to say, the importance of native languages from the viewpoint of the conceptions mentioned above applies to all other nations, whether Western or non-Western. Thus, in order to clarify local conceptions of a ‘decent life’ and ‘human needs’ in various cultures and scrutinize them in the way Miller suggests, intellectuals in each society should engage in highly intelligent and critical thinking in their own native languages, that is, languages which are used daily by ordinary people as well as by the intellectuals themselves. The existence of such intellectuals in a particular society presupposes the existence of a wide range of social conditions. First of all, there is the need for a social environment in which advanced knowledge in all academic fields can be expressed by intellectuals in their native language. And for such a social environment to exist, such advanced knowledge as has been developed in other parts of the world needs to be translated into their native language in ways that necessarily enlarge the vocabulary of that language. Such an environment, however, cannot be formed and maintained unless institutions of higher education operating in the local language are established, and opportunities for diverse professions are made available to the speakers of the local language. Furthermore, specialized books of a variety of academic disciplines written in the native language need to be published and distributed. All this amounts to saying that a ‘societal culture’,27 in Will Kymlicka’s term, of a nation, centred on its own national language, has to be fully developed so that local conceptions of a ‘decent life’ and ‘human needs’ can be appropriately understood and formulated. If a societal culture is not developed, that is, for example, if people in a society cannot receive a higher education or exercise a profession without having to rely on a foreign language such as English, then the well-educated in 24 25 26 27

See Takao Murase, Sunao: A Central Value in Japanese Psychotherapy, in: Cultural Conceptions of Mental Health and Therapy, eds. A. J. Marsella and G. M. White, 1982, 317–329. Murase (note 24), 327 Murase (note 24), 320–321 See Will Kymlicka, Multicultural Citizenship, 1995, 76–80.

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the society will be psychologically and culturally separated from ordinary people. Such a division inevitably brings about some undesirable influences on matters concerning human rights. The experiences of ordinary people may not be considered when local conceptions of a ‘decent life’ and ‘human needs’ are formulated by intellectuals, since these experiences are likely to be ignored when ideas are expressed in a foreign language. Indeed, intellectuals who can only express their thoughts in a foreign language are necessarily distanced from the common people, and the notions of rights based on these conceptions are felt to be alien to ordinary people. Moreover, conceptions of ‘human needs’ proposed in those divided societies are likely to be biased in favour of the viewpoints of intellectuals. As a result, it is feared that the process of cross-cultural comparison and deliberation with regard to ‘basic needs’, on which a global conception of human rights would be constructed, does not work well. Let me summarize the main points that have been made in this section. In order for Miller’s arguments on human rights to make sense, we have to clarify a notion of basic human needs that can be readily accepted by people across cultures. This requires us to engage in a process of comparison and examination of conceptions of a ‘decent life’ and ‘human needs’ proposed by various cultures and to endeavour to identify the reasonable core of ‘human needs’. There must be a social environment in which people of a culture can do highly intellectual thinking in their own native language so that such a process of comparison and examination can be truly meaningful. In other words, we need a pluralistic world order where societal cultures of all nations around the globe are fully developed. The societal culture of each nation has to be defined in such ways as to make it possible for various voices of people within the nation to be included, just as its modernization needs to be carried out on the basis of this societal culture. Until such a pluralistic world order is formed, cross-cultural comparison and examination as regards a truly global notion of human rights will be difficult to undertake. 4. OTHER THINGS WESTERN COUNTRIES SHOULD RECOMMEND: THE IMPORTANCE OF NATIONALISM As noted above, in order for the norm of human rights to function properly as a criterion of global justice, we should recognize the importance of the conditions for producing local intellectuals in each society capable of engaging in highly critical thinking in their indigenous languages. In other words, we need to create a pluralistic world order in which each national culture can be developed as a foundation on which modern social and political institutions can be built. However, Miller does not sufficiently emphasize the significance of the development of non-Western national cultures. For example, he and Cecile Fabre argue that people in Western liberal societies should recommend the values of liberal institutions to non-Western, illiberal societies.28 I find such an argument inadequate in so far as Fabre and Miller, while recommending the values of liberal ideas and institutions, fail to recommend 28

See Cecile Fabre and David Miller, Justice and Culture: Rawls, Sen, Nussbaum, and O’Neill, Political Studies Review, 1 (2003), 15–16.

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those of national cultures. Indeed, they should lay greater emphasis on the need to promote the use of the native languages and cultures for the modernization of nonWestern societies. As theorists of ‘liberal nationalism’, including Miller himself, have noted, liberalism cannot be separated from some aspects of nationalism. This is true not only of the West but also of non-Western societies. Liberal ideas and institutions can work properly only where a national culture prospers and a sense of national solidarity takes deep root. For instance, in order fully to realize equal freedom of choice, there must be a public sphere in which individuals can choose their life plan from a wide range of options available in their native language.29 If, for example, people cannot have a variety of options concerning higher education or occupations in their native language and have to learn a foreign language such as English to enjoy them, there will be serious social and economic disparities between the well-educated and the rest as to the life opportunities open to them. Similarly, a social welfare system requires a strong sense of national solidarity to carry out its proper function stably, since it ultimately depends on the spirit of mutual help between citizens of a country.30 In addition, it is within a national community that democratic politics usually flourishes. Political forums and mass media operating in the national language as spoken by ordinary people are required if these people are to take an active part in politics.31 As to systems of human rights and citizenship rights, liberal ideas and institutions have to be supported by national cultures and solidarity. A true system of rights in society can only be established on the basis of the local conceptions of a decent life and human needs closely related to the senses and experiences that ordinary people have in common. A system of rights has to be something to make people feel that ‘these are our own norms and laws that we need to respect and observe at any cost’.32 If not, the system will seem distant and irrelevant, and is, therefore, unlikely to be observed. However, neither in the seventh chapter of National Responsibility and Global Justice nor in his joint article with Fabre, which examines the cultural validity of liberal justice, does Miller recommend non-Western countries to nurture their national cultures and modernize their societies according to their respective cultures. He only mentions the values of liberal ideas and institutions; which is why I find his arguments somewhat inadequate. However, the problem has not only to do with Miller’s arguments, but also with the self-image of Western societies as usually represented by liberal theorists. It seems to me that, in constructing a perception of their own societies, people in the West often neglect the important role of national29 30 31 32

See, e. g., Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship, 2001, 208–210. See David Miller, On Nationality, 1995, 91–95 and Yael Tamir, Liberal Nationalism, 1993, 96, 117–21. See Kymlicka (note 29), 212–216. This kind of argument does not necessarily exclude the respect for the rights of outsiders. For example, Western theories of human rights have developed justifications for the respect of the rights of every person, including those of outsiders, making use of some arguments that can be said to be specifically familiar to people in the Western cultures, such as deontological, theological, and contractarian arguments.

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ism in sustaining their societies, while focussing only on the liberal aspects of their societies. In my view, it is not only liberalism but also nationalism that has been behind the prosperity of Western societies, yet the nationalism aspect appears to be often overlooked by Westerners themselves. In the latter half of the nineteenth century, when Japan encountered the ‘Western impact’, Japanese political leaders understood ‘gradualism’ and nationalism to constitute the cornerstones of the modern Western civilizations. In the early 1870s, soon after the Meiji Restoration, some senior politicians spent about two years on a diplomatic tour of Europe and the United States. This was named the ‘Iwakura Mission’ after Tomomi Iwakura, the ambassador extraordinary and plenipotentiary heading the mission. The main purpose of the Iwakura Mission was to collect information about modern Western civilizations, from which they hoped to learn, for example, how to draft a constitution and how to modernize their political system. The Iwakura Mission kept a voluminous record about their visits to the West – a record highly interesting for disclosing how Western societies were seen by a nonWestern people hitherto unfamiliar with them.33 In particular, the record made it clear that it was the continuity of national cultures and the strength of national solidarities, such as a strong awareness of the importance of national defence, that constituted the foundations of Western civilizations. Of course, the Iwakura Mission was deeply impressed by some liberal elements of Western societies, for example, parliamentary democratic institutions, market economies, constitutionalism, equal citizenship, and so forth. At the same time, however, they were also forcibly struck by the ‘gradualism’ of Western societies that nurtured the continuity of national cultures and established modern institutions on the legacy of previous generations, as well as by the strong sense of patriotism and national solidarity shared by Western citizens.34 No doubt, post-Restoration Japanese governments could successfully carry out the modernization of the country and introduce modern systems such as constitutionalism, parliamentary politics, and a market economy, thanks largely to the insights gained by the Iwakura Mission into the ways in which both nationalist and liberal elements underlay modern Western civilizations. Furthermore, Japanese political leaders of the Meiji era also came to recognize the importance of national languages in Western societies. Indeed, during the time of the Iwakura Mission, there was a public debate within Japan about whether to continue to use Japanese or substitute it with a Western language such as English to help advance the modernization. Proponents of the use of English, such as Arinori Mori, who was subsequently appointed the first Minister of Education, alleged that since Japanese was a primitive language that lacked a consistent grammatical system and the vocabulary necessary for modernization, English should become the language of their new governmental and educational systems.35 Advocates of Japanese 33 34 35

See The Iwakura Embassy, 1871–1873: A True Account of the Ambassador Extraordinary and Plenipotentiary’s Journey of Observation through the United States of America and Europe, 5 vols, compiled by K. Kume, editors-in-chief, G. Healey and C. Tsuzuki, 2002. See Kazuhiro Takii, The Meiji Constitution: The Japanese Experience of the West and the Shaping of the Modern Japan, trans. by D. Noble, 2007, 31–35. See also The Iwakura Embassy (note 33), vol. II, 109–111, and vol. I, 311–312. See Arinori Mori, A Letter to William D. Whitney, 21 May 1872, and ‘Preface’ to Education in Japan: A Series of Letters Addressed by Prominent Americans to Arinori Mori, 1873. Both are included

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countered such arguments by asserting that Japanese grammar was not inferior to that of Western languages and that, even if Japanese had a comparatively small vocabulary, it could be added to by translating western words. Tatsui Baba, a Japanese social reformist, who was a representative proponent of Japanese, developed several arguments in this debate similar in some respects to today’s liberal nationalist arguments put forward by Kymlicka.36 The reasons Baba gave for his objections to Mori’s arguments for the introduction of English as the new official language of Japan were as follows. First, Baba was concerned that the substitution of English for Japanese would exacerbate a serious social and economic disparity by creating a new disparity in the mastery of English among citizens, because ‘naturally the wealthier classes of people can be free from the daily occupation to which the poorer classes are constantly subjected, and consequently the former can devote more time for learning the language than the latter.’37 The second objection Baba raised is related to the first. He pointed out that if modernization were carried out by the substitution of English, political and social participation would be limited only to the upper classes, and the lower classes would be ‘shut out from the important questions which concern the whole nation’.38 Third, he was worried that such a linguistic divide would consequently destroy the sense of national solidarity and cohesion. Incidentally, referring to Indian society of that time, Baba expressed his fear that there would be ‘an entire separation between the higher class and the lower, and no common sympathies between them’.39 Thus we see how Baba, as well as those participating in the Iwakura Mission, came to realise the extent to which not only the liberal but also the nationalist elements such as integrated national languages and national solidarity and cohesion were the foundations of the prosperity of Western societies. In the end, the new Japanese government adopted the modernization of Japanese society as based on the Japanese language, thereby virtually accepting the arguments advanced by the proponents of Japanese such as Baba. The government then made earnest efforts to have Japanese vocabulary increased through translation of a wide range of words of European languages. As a result, the modern political, economic, and educational institutions operating in the Japanese language managed to be established, and that with no little success. As shown above, Japanese leaders who faced the ‘Western impact’ realised how much nationalism and liberalism were at the root of Western societies. They understood that the prevalence of national cultures as centred on national languages, as well as the modern liberal institutions built on these cultures, were the main source of the prosperity of Western societies. However, people in Western societies often appear to overlook the nationalist aspects of their own societies, while focusing only on the liberal aspects. This one-sidedness of the Western self-image sometimes results in the unfortunate effect of Western societies requiring non-Western societies to accept the

36 37 38 39

in: Mori Arinori Zenshu [The Collected Works of Arinori Mori], ed. T. Okubo, bk. III, 1972. See Baba, T., ‘Preface’ to his An Elementary Grammar of the Japanese Language, with Easy Progressive Exercises, 1st ed., 1873, iii–xi. This is included in: Baba Tatsui Zenshu [The Collected Works of Tatsui Baba], eds. T. Nishida et. al., bk I, 1987. See Baba (note 36), ix. loc. cit. loc. cit.

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form of liberal political and economic institutions dominant in the West without paying sufficient attention to the significance of non-Western national cultures. This general self-image of Western societies seems to have had a certain influence on some of Miller’s arguments. The liberal ideas and institutions of Western societies are supported by their nationalist elements such as integrated national languages and a sense of national solidarity. Miller, who is a leading theorist of ‘liberal nationalism’, is bound to have recognized this. However, when pondering the question as to what attitude Western societies should take towards non-Western societies, Miller does not lay much stress on the importance of these nationalist elements and only recommends non-Western societies to recognize the values of liberal institutions. This might be because, unconsciously influenced by the general self-image of Western societies, he lets nationalist elements recede into the background. To my mind, Miller should be more aware of the importance of his own arguments concerning the close relationship between the liberal elements and the nationalist elements, when considering what attitudes the West should take towards the non-West, as well as the conditions necessary for cross-cultural dialogue in the quest for a truly global notion of human rights. 5. CONCLUDING REMARKS Both Miller and Kymlicka have suggested that liberal ideas and institutions need to be sustained by nationalist elements such as integrated national languages and a sense of national solidarity and cohesion. These liberal nationalist arguments are highly significant in postulating an oft-forgotten relationship between liberal and nationalist aspects. The insights of these scholars are also important when we consider how the idea of human rights can take root in non-Western societies. Miller should give more consideration to the significance of national cultures when formulating the idea of human rights as a component of global justice. In order to construct a genuinely cross-cultural conception of human rights based on ‘basic human needs’, we need a more pluralistic world order where national cultures are maintained and developed so that the modernization of each society can be advanced on the basis of its own national culture. Until such a pluralistic world order is shaped, cross-cultural comparison and examination with respect to a truly global notion of human rights can hardly take place, especially since it is almost impossible to understand local conceptions of the decent life and of human needs unless people are able to engage in intellectual exploration in their own national languages. In this connection, Miller should be more conscious of the essential part played by national cultures and national solidarity in the modernization of Western societies, and recommend non-Western societies not only to import liberal institutions but also to nurture and develop their own national cultures in such ways as to make them solid bases for their own political and social institutions. Teruhisa Se Faculty of Social and Cultural Studies, Kyushu University 744 Motooka, Nishi-ku, Fukuoka 819-0395 Japan

SEIKO URAYAMA, TOKYO (SEIJO UNIVERSITY) ON WEAK COSMOPOLITANISM 1 INTRODUCTION As Amartya Sen has famously said, any theory of distributive justice comprises two distinct but interdependent questions: “why equality?” and “what equality?” Sen argues that the latter question is more fundamental than the former in that we cannot answer the former without addressing the latter.1 In the controversy over global distributive justice which was provoked by John Rawls’s A Theory of Justice2 and Law of Peoples3, the question of “why equality?” rather than “what equality?” seems to have been hotly debated. On the one side, beginning with Rawls himself, a number of scholars such as Thomas Nagel and Michael Blake deny that the principles of social justice extend to the global society. On the other side, scholars such as Charles Beitz, Thomas Pogge and Hillel Steiner believe that the principles of distributive justice have a global scope. What differentiates both views is why (or why not) equality matters in the global society. What characterizes David Miller’s influential work most is that he tries to propose a middle ground between these two theoretical streams. His view on global distributive justice is clearly different from that of straightforward cosmopolitans who see no difference between social justice and global justice, such as Charles Beitz, who suggests the globalization of Rawlsian principles of justice.4 Nor does he share the views of anti-cosmopolitans such as Thomas Nagel, who sees the difficulty of implementing the principles of distributive justice because it presupposes the coordination of a large number of people’s behaviour in the global society.5 “Weak cosmopolitanism” is the way Miller defines his particular idea. But though it is a worthy definition in its way, I have been disappointed to note that Miller is not very clear in the details with which he tries to substantiate that idea. Accordingly, the aim of this essay is to invite Miller to clarify what he means by “weak cosmopolitanism”. I shall, therefore, offer three possible interpretations of the “weakness” of “weak cosmopolitanism” by reviewing Miller’s view on global distributive justice, as put forward in his book National Responsibility and Global Justice.6 2 THREE POSSIBLE INTERPRETATIONS “WEAK COSMOPOLITANISM”

OF THE

“WEAKNESS”

OF

What is “weak cosmopolitanism”? How weak is it? How much weaker is Miller’s cosmopolitanism than the claims of other cosmopolitans who endorse that one is 1 2 3 4 5 6

Amartya Sen, Inequality Reexamined, 1992, 12–16 John Rawls, A Theory of Justice, 1971 John Rawls, The Law of Peoples with “The Idea of Public Reason Revisited”, 1999 Charles Beitz, Political Theory and International Relations with a new afterword by the author, revised edition, 1999 Thomas Nagel, The Problem of Global Justice, Philosophy & Public Affairs, 33(2), 2005 David Miller, National Responsibility and Global Justice, 2007

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entitled to equal consideration no matter where one lives or where one is born? Miller’s use of the word “weak” implies that the burden of the rich is, in his view, more limited than that in other cosmopolitan views. Then how limited is it? Miller’s explanation is not very clear. He presents three notions of weak cosmopolitanism. [E]very human being has equal moral worth; another that every human being is equally an object of moral concern; yet another that we owe every human being impartial consideration of their claims upon us.7

According to Miller, weak cosmopolitanism is “in the first place a claim about moral value”. The premise of weak cosmopolitanism itself does not follow any substantive principles of equal treatment.8 Then what does it follow? I shall try to flesh out the claim of weak cosmopolitanism by reviewing Miller’s concept of global distributive justice as laid out in National Responsibility and Global Justice as a whole. Miller’s position on global distributive justice can be described as more limited than other cosmopolitanisms in three ways. First, the claim of weak cosmopolitanism may mean objections to the principle of global equality. Miller suggests that both the idea of global equality of resources and that of global equality of opportunity face two problems. One is the problem of metrics in the comparison between property values and a gap of opportunity across nations. As regards the idea of global equality of resources put forward by Thomas Pogge and Hillel Steiner, Miller points out that values of property depend not only on the physical availability of resources in a particular piece of land, but also on factors such as the rules and conditions of its ownership, the preferences of the people who hold a site, and its surroundings. Therefore Miller suggests that there is no neutral way of defining resource values independently of these factors. Again, as regards the idea of global equality of opportunity, which is mainly advocated by Darrel Moellendorf, Miller suggests that what defines which sets of opportunity are equal and which are not is a matter of cultural understanding. For example, some people think that the opportunities provided by a school and a church clearly differ, while others think that both are roughly equivalent in terms of providing an ‘access to enlightenment’. Thus, according to Miller, there is no neutral way of comparing each set of opportunity across cultures. 9 Another problem which the idea of the principles of substantive equality gives rise to is the so-called free-rider problem. Miller cites two cases that remind us of two cases that John Rawls examines in The Law of Peoples. In the first case, there are two societies in which an initial resource endowment is equal: one chooses to use up its resources in the early stage of development, the other to maintain its resources with the aim of sustainable development. In the second case, there are also two societies in which initial resource endowment is equal, one in which population expands rapidly as a result of encouraging large families, the other in which its population is controlled at a stable level. In both cases, as time goes on, per capita resource levels will become higher in the latter society than in the former one. Miller says that there are two objections, if the latter is asked to give economic redistribution to the former in each case, while he admits that denying any redistribution also has its 7 8 9

See Miller (note 6), 27 See Miller (note 6), 28 See Miller (note 6), 58–62

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problems. First, it is unfair to aid societies whose lives are lived at the expense of other societies that have made the hard decision of giving up a consumer life or having more children. Second, requiring redistribution reduces each society’s incentives to making a responsible decision for its own fate. If we recognize redistribution between societies, societies doing whatever they want become easily dependent on societies that try to live a self-restrained life. According to Miller, those who are qualified for redistribution are people in the former societies in both cases who not only have opposed the policies of their society but have also been able to show that they are supposed to support the policies of the other society. 10 Consequently, in Miller’s view, even though the rich have a responsibility to remedy the abject living conditions of the global poor, what the rich owe the poor is what is needed for a very basic level of subsistence, namely, food, water, shelter, and so on. Appealing to the “core human activities”, which can be described across contexts, Miller proposes providing the basic minimum which enables a person to engage in each of these core activities.11 In other words, the burden of the rich can be described as being limited to providing the basic minimum for the poor but not beyond that. Second, the claim of weak cosmopolitanism may mean the objection to ascribing one cause of the persistence of global poverty to the defects of global institutional order. Thomas Pogge’s well-known work shows that the current global institutional order in which rich countries have been playing a leading role in creating and upholding it has a harmful effect on the global poor. Thus, according to Pogge, the current global institutional order recognizes any government which effectively controls a certain territory as the legitimate government of that territory and its people, regardless of the extent to which it is supported by its population. Any government which is supposed to represent a people in a territory is entitled freely to dispose of natural resources in the territory and to borrow the money from banks in the country’s name. Therefore recognizing any government which effectively controls a certain territory as the legitimate government of its territory and people means that that government is free to dispose of natural resources in the territory and to borrow money from banks in the country’s name and give it to ruling groups that effectively control the territory. These privileges encourage the powerful groups of a country to attempt coups d’état in order to take over the territory. Thus poverty in a domestic society may be encouraged by the global order. According to Pogge, the rich have a responsibility to help the global poor not because the latter have been entitled to it since birth, but because the rich should compensate for the loss that the poor have suffered under the current global institutional order.12 Yet Miller repudiates Pogge’s claim by pointing out that there are some countries doing far better than others, even under the current global institutional order. Miller holds that the fact that some countries are doing far better than others, even under the current global institutional order, shows that the reason why some countries have developed less should not simply be ascribed to the defects of the institutional order. There are some other possible reasons for underdevelopment that may have to do with geographical location or particular cultural traditions. 13 10 11 12 13

See Miller (note 6), 68–72 See Miller (note 6), 184–185 Thomas Pogge, World Poverty and Human Rights, 2nd edition, 2008, 118–123, 168–172, 205–207 See Miller (note 6), 238–247

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As a consequence, in Miller’s view, what the global rich owe the global poor is only a remedial responsibility that is meant to rescue people from suffering when the basic needs of people are not satisfied. It is not a responsibility which is ascribed to something we ourselves bring about.14 Therefore, according to Miller, the burden of the rich can be described as being limited in so far as the rich cannot be held outcome responsible for the effect of the current global institutional order on the persistence of poverty. Third, the claim of weak cosmopolitanism can be interpreted as indicating that there would be a certain point at which people in rich countries may justifiably refuse to meet the claims of the global poor. This is the claim of the ‘justice gap’. According to Miller, the justice gap is “a gap between what people in poor countries can legitimately claim as a matter of justice” and “what the citizens of rich countries are obliged, as a matter of justice, to sacrifice to fulfill these claims”.15 Citing an example of humanitarian intervention, Miller emphasizes how costly it is to save a large number of lives abroad successfully.16 Miller’s claim that we can certainly narrow the gap rather than that we can fill the gap, or should fill the gap, shows that this claim is not one made from a practical point of view.17 Any theorist of cosmopolitanism will recognize that there tends to be a gap between what people in poor countries legitimately claim and what people in rich countries can provide right now. The gap here opens as a result of practical problems such as a lack of resources, information, and a willingness to help. If the gap between the burden of the rich and the claim of the poor is one which arises out of a practical problem, the ultimate goal must be to fill it completely. However, Miller does not say what more can be done. The gap he claims can be thought to suggest that there should be some situation in which the rich can refuse to meet the claim of the poor even without there being any practical problems. Therefore, in Miller’s proposal, we can say that the burden of the rich is limited in so far as the rich can justifiably refuse to meet the requests made by the poor in particular situations. 3 DEMOCRACY

AND THE PROVISION OF MATERIAL NEEDS

Let us examine the plausibility of these interpretations. My first analysis is concerned with the way in which to see to basic needs. The burden of the rich in Miller’s theory can be described as being limited to providing a basic minimum for the poor, and not beyond that. Let us check the basic minimum which the rich have a responsibility to provide. Here is Miller’s list: [F]ood and water, clothing and shelter, physical security, health care, education, work and leisure, freedoms of movement, conscience, and expression.18

14 15 16 17 18

See Miller (note 6), 97–104 See Miller (note 6), 274; David Miller, Social Justice versus Global Justice?, Social Justice in the Global Age (ed. by O. Cramme & P. Diamond), 2009, 34–35 See Miller (note 6), 272 See Miller (note 6), 279 See Miller (note 6), 184

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Obviously, what Miller excludes here are democratic rights, such as the right to vote and the right to be elected. How does he think it is possible to provide basic minimum globally? Miller considers four sub-duties, either negative or positive, that are entailed by the duty to respect basic rights. For example, he seems to think that duties are fulfilled by, say, emergency aid in the form of material goods.19 However, what is problematic about foreign aid is that the assistance does not necessarily reach those people who need it. We often hear that the aid has fallen into the hands of ruling groups, or is exhausted by the inefficient administration of the country concerned. One way of helping to reduce the suffering of people from a lack of basic materials is to promote democratic governance in a country. Amartya Sen’s influential work on famine shows how democracy and freedom of speech are important for preventing famine. Sen holds that, besides their self-evident importance, democracy and freedom of speech have instrumental roles in keeping famine from happening. First, nothing but democracy can give government officials the incentives to hear what citizens truly want. Government officials of the day are not the victims of disasters themselves. What makes them sit up and see what is happening in their society and hear what people want is the open criticism which they may have to face, as well as their ambition to win votes in elections. Second, freedom of the press helps the functioning of democracy. Only a free press can provide non-biased information about what is happening in a society. Without a free press, governments may hide or manipulate information which may be embarrassing for them. Third, open discussion in public helps people to know what they need to do in order to avoid the suffering of poverty. Accordingly, Sen argues that famine has never occurred in any independent country where there were periodic elections, opposition parties to the government, and a free press.20 For comparison, based on Sen’s work as well as other sources, Allen Buchanan, who himself advocates the provision of a decent life on a global scale, recognizes the right to democratic governance as a basic human right. Thus, what he calls “democratic minimum” consists of representative majoritarian institutions to make laws, the possibility of changes of government in elections, and the protection of freedoms of speech and of association and assembly to allow free discussions in public and the proper functioning of political parties.21 Why does Miller exclude democratic rights? Does he think they are a luxury? Or are they only a Western heritage? There are all kinds of democratic governance. A full-blooded democracy may be something we cannot, and should not, expect in every country, including our own. Yet Sen’s work suggests that some basic aspects of democratic governance contribute to material subsistence. Certainly the necessity of something for some purpose has nothing to do with where it comes from. The fact that democracy has its origins in ancient Greece does not lessen its usefulness in meeting the material needs of people around the present-day world. Therefore putting certain democratic rights into the basic needs list is something that Miller

19 20 21

See Miller (note 6), 47 Amartya Sen, Development as Freedom, 1999, 146–188 Allen Buchanan, Justice, Legitimacy and Self-Determination, 2004, 142–147

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needs to make essential to his theory. And if he were to do so, he would realize that the burden of the rich is no longer limited to supplying material needs globally. 4 NEGATIVE

EFFECT OF THE GLOBAL INSTITUTIONAL ORDER AND

THE RESPONSIBILITY OF THE RICH

Second, the claim of weak cosmopolitanism may mean an objection to ascribing one cause of global poverty to defects in the global institutional order. Yet I wonder whether the general idea underlying Miller’s objection to the substantive principles of equality does not entail the idea of compensation for the loss that the global poor have suffered under the current institutional order. Miller argues that requiring redistribution reduces each society’s incentives to make a responsible decision for its own fate.22 Why does he think so? What he seems to be saying is that the global institutional order should provide a framework enabling each society to develop itself according to its understanding of what the good society is. Political institutions generally affect the behaviour of people. Just as a domestic institutional order has a significant effect on people’s conduct in a society, so the institutional order of the global society affects the behaviour of each country. The reduction of each society’s incentive to make a responsible decision for its own fate must be unacceptable because it allows one society to sustain itself at the expense of other societies. As Miller suggests, it is important not to take so much from those countries doing well as to prevent them from being self-dependent. Also to be avoided are the misunderstandings to which the institutional order may lead. As international trade grows, fairness of the rules of trade is becoming crucial. Rich countries should not benefit by imposing unfair burdens on poor countries. That is the point made by Pogge. Pogge’s reference to attempted coups d’état as based on resource privileges and borrowing privileges exemplifies a glaring misinterpretation of the current global institutional order and suggests that the international order should be reformed, or that losses due to this order should be compensated. Whose responsibility is it? It should be 22

My question arising from Miller’s objection to the substantive principles of equality is whether the rich do not really have incentives to help the poor. For every country, economic and social development of surrounding countries is as important as its domestic matters in both positive and negative ways. One of the characteristics of Japanese ODA is that a large part of bilateral aid goes to Asian countries because East Asian development is of potentially great benefit to Japan. See Government of Japan, Ministry of Foreign Affairs, Economic Co-operation Bureau, Japan’s Official Development Assistance Charter, 2003, http://www.mofa.go.jp/policy/oda/reform/revision0308.pdf As Peter Singer says, the top recipient of the US ODA used to be Egypt, one of the middle income countries, for political purposes. See Peter Singer, One World: the Ethics of Globalization, 2nd edition, 2004, 180–182. A strategic tendency of ODA suggests that the economic and social development of surrounding countries affects a country positively. Also, the economic and social conditions of surrounding countries affect a country in negative ways. For example, a new strain of swine flu, which spread from Mexico to the rest of the world in 2009, killed more than 10,000 people in the US, and about 200 people in Japan. Public health infrastructures in some countries may affect the collective health of the global population. These examples show that countries have a significant incentive to help the development of other countries and thereby ensure their own prosperity. I suspect that any redistribution between countries reduces their incentives to be self-dependent.

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ours. Citizens in rich countries who greatly benefit from the current system must have more responsibility than those who suffer from its disadvantages but have no effective means of countering them. Miller points out that some countries are doing far better than others, even under the current global institutional order. However, the fact that some countries are doing better than others does not take these responsibilities away. Even countries doing well must have faced certain losses on account of this system. It therefore follows that those countries doing well also have a claim on compensation for what they have lost through the defects of the global institutional order. 23That is why I believe that the general idea underlying Miller’s objections to the principles of substantive equality should also entail the idea of compensation for the loss that the global poor has suffered under the current institutional order. 5 JUSTICE

GAP

I shall now consider the third possible interpretation. The claim of weak cosmopolitanism may mean the existence of the justice gap. The claim of the justice gap is one somewhat unclear in Miller’s theory. One of the questions is whether such a gap can be justifiable as regards the protection of basic needs around the world. I suspect that an answer that either admits or denies the gap cannot be satisfactory from Miller’s viewpoint. First, Miller may say that there is no gap when meeting the threshold of basic needs. The rich have a full responsibility to raise the living conditions of the poor living below the threshold of basic needs. Thus, the claim of the justice gap seems to amount to nothing because, in Miller’s view, the rich have no responsibility to provide anything beyond meeting basic needs in the first place. Remedial responsibility towards people only arises when people lack food and other basic needs. Providing aid which goes beyond meeting basic needs is not a matter of justice, for the rich are free to do what they like. Second, Miller may, on the other hand, recognize that the gap is justifiable even when people’s basic needs are being seen to. Thus, Miller’s claim seems to approach the claim of anti-cosmopolitanism. Admitting the gap implies that there may come a point at which people in rich countries justifiably refuse to meet the claims of the poor. However, can one still describe that as the requirement of justice, even if one refuses to meet it at will? So the key question as to the plausibility of Miller’s position here is this: When can the rich justifiably refuse to meet the claims of the poor? Miller cannot answer this question simply by pointing out that there might be situations in which there are not enough resources to meet everyone’s needs. If so, the rich not only justifiably refuse to meet the claim, but have no choice but to refuse. This denial of the justifiability of the claim is, however, a practical problem, not a theoretical one. As Miller argues, “rights can continue to exist in the face of scarcity”.24 The justifiability of the claim does not disappear simply because it cannot be met. The duty of assistance which you can refuse to fulfill whenever you want to is tantamount to giving voluntary assistance from a purely humanitarian 23 24

I am indebted to Tatsuo Inoue for suggesting this argument. See Miller (note 6), 190

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point of view. Therefore claiming the justice gap without defining the situations in which it is justified leads Miller to anti-cosmopolitanism. In that view, the burden of the rich is not limited but thrown away. 6 CONCLUSION In this essay, I have examined three possible interpretations of the claim of weak cosmopolitanism. Sen’s analysis of famine shows how basic aspects of democracy work for the meeting of material needs. If Miller agreed to include democratic rights in his list of basic needs, the burden of the rich would no longer be limited to supplying material needs globally. The general idea that underlies Miller’s objection to global redistribution already implies the idea of compensation for the loss that the global poor have suffered under the current institutional order. Claiming the justice gap without defining the situations in which it is justified leads Miller to anti-cosmopolitanism. My three interpretations are intended to suggest that the claim of weak cosmopolitanism is not as stable as it appears to be. Seiko Urayama Faculty of Law, Seijo University 6-1-20 Seijo, Setagaya-ku, Tokyo 157-8511 Japan

CHIKAKO ENDO, NISHINOMIYA (KWANSEI GAKUIN UNIVERSITY) CITIZENSHIP, NATIONALITY

AND

COLLECTIVE RESPONSIBILITY

INTRODUCTION Holding people to be collectively responsible means that we deem a group of individuals jointly responsible for outcomes based on their group membership. Moreover, this responsibility descends to group members in a way that is not directly linked to their individual share in producing the net outcome. In the case of state responsibility – one of the most often discussed forms of collective responsibility – few people would deny that the state as a corporate agent is responsible for the consequences of its policies; its level of economic development, or some sort of injustice done to people of other countries. However, it is more difficult to explain why individual citizens may be held responsible for the actions of their state, especially if they have not given explicit consent or approval to state policies; indeed, some may even have dissented to them. Thus, a morally plausible theory of collective responsibility must be able to explain why it is acceptable that individual members should bear the burdens of responsibility for collective outcomes.1 In National Responsibility and Global Justice, David Miller argues that we can assign collective responsibility to individual members of nations for the policies of their state based on two models of collective responsibility.2 The first is the likeminded group model, whereby individual members of a group contribute to the general atmosphere that condones collective actions.3 The second is the cooperative practice model, whereby individual members engage in relationships and practices from which they reap common benefits.4 Miller argues that we may assign collective responsibility to individual members of nations to the extent that they share these qualities. A noticeable point about Miller’s argument is that he says little about ‘citizens’ as a group of people with special relationships to each other to whom we can assign collective responsibility.5 Why not emphasize co-citizens, rather than co-nationals, as bearers of collective responsibility in relation to state acts? In fact, it is more natural to say that ‘states act on behalf of citizens’ rather than that they act on behalf of nations. There are multi-national states and states that fail to act on behalf of the nation they are meant to serve.6 However, the very meaning of citizenship 1 2 3 4 5 6

This question, namely why should the responsibility of corporate bodies fall on individual members, has recently been taken up by Anna Stiltz, Collective Responsibility and the State, Journal of Political Philosophy 19:3 (2011), 190–208. David Miller, Nationality and Global Justice, 2007 Cf. Miller (note 2) 114–118 Cf. Miller (note 2) 118–120 Miller (note 2) at 125 notes how nationality is distinct from citizenship, and that he is arguing distinctly about national responsibility as opposed to the collective responsibility of citizens. Miller (note 2) at 112 acknowledges these points, but holds that identifying responsibility with a collective group of individuals separately from their formal, institutional membership may be advantageous in the following ways: it can help explain why state responsibility may descend

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embodies the idea of individual citizens authorizing their state to act as their agent.7 Miller’s aim, of course, is not to deny that citizenship is an appropriate relationship for assigning collective responsibility in relation to state acts. However, in my view, his emphasis on national responsibility is partly meant to show how collective responsibility may extend to people who have not given explicit consent to their government or its policies through democratic institutions. Nevertheless, I will try to show that according to both the like-minded group and cooperative practice models, citizenship is a more defensible source of collective responsibility than nationality in relation to state policies. This article is organized as follows. In the second section, I will clarify the concepts of citizenship and nationality which I employ, following Miller’s understandings of the two concepts. The third section examines how the like-minded group model can be applied to nationality and citizenship, respectively. I will argue that the normative and institutional conditions of citizenship are significant for assigning the benefits and burdens of collective responsibility to individual members. In the fourth section, I will assess Miller’s application of the cooperative practice model on nations. I will argue that the norms and institutions of citizenship have a primary role in constituting fair cooperative practice, while a national culture may only have a secondary one. Finally, I conclude that we would face difficulties in assigning collective responsibility to individual members of a nation independently of the norms and institutions of citizenship. 1 CITIZENSHIP

AND NATIONALITY

While both citizenship and nationality are used in everyday speech to denote membership in a political community, they are conceptually distinct as political concepts in a way that is significant for debating how collective responsibility can be applied to them. First, citizenship, by definition, is a legal status of equality that denotes institutional membership in a state. As Miller states elsewhere, norms of equality constitute our understanding of what it means to be a citizen. Equal citizenship means that every adult member of the political community must enjoy equal rights and responsibilities which together make up the single status of citizen. This is a one-class status – when we talk about people as second-class citizens, we do so in order to draw our attention the fact that something has gone wrong, that our institutions are not performing in the way that they should; no one can legitimately be a second class citizen.8

The legal status of citizen confers equal rights and obligations on individuals as full members of the political community.

7 8

to individual members, assign responsibility to individual members of a collective group when a state which enacted certain acts no longer exists, and hold responsible groups of people who do not yet possess their own self-determining institutions. However, the arguments in this paper seek to show that national responsibility divorced from the norms and institutions of citizenship may not be defensible. Stiltz (note 1) has recently argued that democratic authorization of government policies ground individual members’ liability to reparative responsibility in relation to state actions. David Miller, Immigrants, Nations and Citizenship, Journal of Political Philosophy 16:4 (2008), 371–390, at 375

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Second, citizens are not simply members of any kind of state, but of a democratic one. Citizens’ equal right to political participation is a crucial factor that distinguishes citizenship from other forms of political membership – in autocracies, dictatorships, monarchies, etc. Democratic constitutions ensure that citizens are entitled equally to take part in institutionalized decision-making procedures regarding their collective affairs. While almost all contemporary states depart from the model of direct democracy, they possess some sort of formal procedures that allow for each citizen’s input into political decisions indirectly, usually through the periodic election of political officials who make up the government which is to represent them. Third, citizenship is a reciprocal relationship among co-citizens governed by norms of fairness and equality (including equal political rights). Individual citizens collectively uphold and protect each others’ equal rights. Thus, doing your part to ensure that others’ rights are respected and protected is part of the deal for ensuring the same for your own – paying tax to support welfare policies, respecting democratic procedures, etc. In this sense, citizenship is understood as the ‘right to have rights’, which comes with corresponding responsibilities. By contrast, membership in a nation does not always coincide with institutional membership in a state. Rather, the central feature of national membership is that members mutually perceive themselves as sharing a common identity and public culture. Miller sets out five features that group members must share when we want to identify them as constituting a nation.9 First, members of nations possess a common identity. In other words, they are not simply collections of separate individuals, but a group of people who mutually ‘feel that they belong together because of what they have in common’.10 Second, members of nations share a common public culture, that is, ‘a set of understandings about how their collective life should be led, including principles that set the terms of their political association…and guide, in broad terms, the making of political decisions…’.11 Third, nations are groups of people who have special obligations to each other that they do not have towards other peoples, and fourth, value the continued existence of their nation as a public good. Finally, nations possess the ‘aspiration to be politically self-determining’, whether or not they currently possess self-governing institutions.12 In sum, citizenship is characterized by a legal status of equality in relation to a set of political institutions, governed democratically and informed by norms of equality, fairness and reciprocity. The concept of citizenship, in this context, is understood to be divorced from the internal attitudes, beliefs or practices of individual citizens, except to the extent that they uphold the norms and political principles that sustain their equal democratic citizenship.13 By contrast, the concept of na9 10 11 12 13

Cf. Miller (note 2) 124–6; See also Miller, On Nationality, 1995 Miller (note 2) 124 Miller (note 2) 124 Miller (note 2) 126 The idea of citizenship as a legal status of equality divorced from members’ internal beliefs and attitudes has been characterized as the ‘liberal’ model of citizenship, usually in contrast to the republican tradition, which emphasizes members’ internal commitments to their particular political community. For liberal conceptions of citizenship, see, e. g. John Rawls, A Theory of Justice, 1971, esp. 454–8, 474, 493 and Bruce Ackerman, Social Justice in the Liberal State, 1980. However,

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tionality emphasizes members’ internal perceptions of shared identity or public culture, while it can be divorced from their membership in political institutions. Moreover, unlike the idea of citizenship, nationality is not associated with any particular set of political principles or norms; what is significant is that members hold certain principles in common which produce certain patterns in collective outcomes in ways that can be said to reflect their national character. Given the concepts of citizenship and nationality described above, I shall now try to argue that the principles of citizenship are significant for explaining why collective responsibility can descend to individual members of a state based on both the like-minded group and cooperative practice models. 2 THE

LIKE-MINDED GROUP MODEL

Let me now turn to Miller’s like-minded group model of collective responsibility to assess the way it seeks to assign state responsibility to individual members. According to this model, we can attribute collective responsibility to individual members of a group when they ‘share aims and outlooks in common’ and ‘recognize their likemindedness so that when individual members act they do so in light of the support they are receiving from other members of the group’.14 Miller cites the example of a rioting mob, and holds that the damage inflicted by the mob as a whole can descend to individual members who have not actually shattered the shop window or vandalized a car, since they jointly took part in encouraging and lending support to those acts.15 Miller also cites Joel Feinberg’s example of racist acts and policies towards black people by Southern whites in the United States during the post-war period.16 Even without actively endorsing discriminatory policies, white citizens as a whole could be seen as outcome responsible for racist acts by interacting with each other in ways that supported or simply sustained racist attitudes either consciously or unconsciously. Therefore, the like-minded group model identifies collective responsibility with individuals independently of their active consent to collective policies; what matters is their participation in the environment within which those policies take shape. By definition, a nation is a like-minded group since it is constituted by people who share a public culture – common outlooks and purposes – and recognize each other as doing so. Hence, Miller argues that we may assign collective responsibility to nations for their state policies in terms of the like-minded group

14 15 16

the liberal idea that focuses on members’ commitment solely on political principles has been a subject of criticism by republican theorists and among liberals themselves, who argue that commitment to political principles are, by themselves, insufficient for sustaining liberal ideals (e. g. Stephen Macedo, Liberal Virtues, 1990; David Miller, On Nationality, 1995; Eamonn Callan, Creating Citizens, 1997). While citizenship is a contested concept in these ways and can come in a variety of forms, for the purposes of this paper, I take the core feature of citizenship that is common to all these conceptions, and which distinguishes it from other forms of political membership, to be the ideals of democratic self-government and members’ mutual protection of equal rights grounded in institutions of justice. Miller (note 2) 117 Cf. Miller (note 2) 114–5. See also Larry May, The Morality of Groups, 1987, 33–41 Cf. Miller (note 2) 118; Joel Feinberg, Collective Responsibility, The Journal of Philosophy, 65:21, 1970, 247–8

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model. If the national public culture lends support to certain patterns in political outcomes, we can assign collective responsibility to individual members of nations, even if some are indifferent to, or even dissent from, particular policies. While I agree that like-mindedness may play a part in enabling us to identify causal responsibility with nations for state policies, we need a further argument to show that individual members of nations can also be held outcome responsible for them in the way that Miller himself describes.17 While the two concepts are often used interchangeably, causal responsibility refers to responsibility simply for having a role in causing outcomes, while holding an agent to be outcome responsible means that we can credit or debit her for her acts.18 The critical condition necessary for the latter is that the agent has a sufficient degree of control over her actions in relation to outcomes.19 Whether an individual possesses control over outcomes in the relevant sense is largely a matter of whether she can exercise her agency.20 In other words, the agent must be capable of forming intentions and reflecting upon them, as well as acting upon those intentions. The capacity to form and reflect upon one’s intentions largely involves qualities internal to the individual, such as the ability to understand the options available in relation to desired outcomes and the means to pursue them, as well as the capacity to make judgments about the desirability of certain outcomes over others in a given situation. By contrast, the ability to put such judgments into action often depends upon facilitating or debilitating external conditions. Debilitating external conditions may include physical conditions like being locked up or threatened at gunpoint, lacking access to resources, such as money or skills that are necessary for an agent to realize her chosen course of action, or some sort of unforeseeable circumstance such as a natural disaster over which the agent cannot reasonably be expected to have any control. We cannot credit or debit people for outcomes when we judge that they lack control over them either through internal or external factors. Thus, we may relieve infants or people under the influence of drugs from outcome responsi17 18

19 20

Cf. Miller (note 2) 86–90 for his account of outcome responsibility There are various other characterizations of this distinction between causal and outcome responsibility. Causal responsibility is often contrasted with ‘moral responsibility’ or ‘blame responsibility’ which refers to ‘crediting or debiting an agent with producing an outcome in a way that exhibits moral fault or virtue’ Stiltz (note 1) at 194–5. See also Robert Goodin, ‘Apportioning Responsibility’, Law and Philosophy, 6 (1987), 167–185; Philip Pettit, Responsibility Incorporated, Ethics, 117, 2007, 171–201. However, as Miller (note 2) at 89–90 argues, outcome responsibility is distinct from moral responsibility since agents can be praiseworthy or blameworthy for reasons that have no relation to moral fault or virtue. Cf. Miller (note 2) 93 Individual agency is often held to be a precondition for holding people responsible for outcomes (Cf. Pettit (note 18); Roland Pierik, Collective Responsibility and National responsibility, Critical Review of International Social and Political Philosophy, 11:4, 2008, 465–483). Pierik has also argued against Miller that individual agency is an important prerequisite for both individual and collective responsibility. Pierik argues that in order to assign collective responsibility to groups, we need to consider the collective agency of the group in terms of the agency of formal, institutional bodies. For this position, see also, e. g. Philip French, Collective and Corporate Responsibility, 1984; Toni Erskine, Assigning Responsibilities to Institutional Moral Agents: the Case of States and Quasi-States, Ethics & International Affairs, 15:2 (2001), 67–85; Pettit (note 19). My position is that we should also consider the role of individual agency – not only corporate agency – in relation to collective acts to justify collective responsibility.

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bility. We may also exempt someone from blame for being late to a meeting due to illness or a traffic accident.21 Now, let us return to the idea of national responsibility based on members’ likemindedness. We may hold co-nationals who share a public culture to be causally responsible for lending support to policies that reflect their patterns of beliefs and interactions. However, in order to assess whether we can also hold them to be outcome responsible – that is, subject to praise or blame – for policy outcomes, we need to consider what degree of control or agency they have in relation to their public culture that informs those policies. Admittedly, assessing the degree of agency that people have over their public culture would be a difficult task. In many senses, we are shaped by our public culture so that the ways in which we interact are likely to be determined by the culture itself to a certain extent. The ends we choose and the course of action we take to pursue them in given situations are largely shaped by our social context so that it may be difficult to evaluate the extent to which people have reflective control over the public culture. Nevertheless, we can still imagine situations in which we can be relatively confident that most people would not have reasonable control over their environment. These would be cases in which ‘external’ conditions effectively coerce certain patterns of behaviour on individuals. For instance, imagine an employee in an authoritarian work environment where all decisions are taken by a manager who dominates the workplace. There are no formal or informal mechanisms for employees to express their ideas or grievances openly. This employee, perhaps implicitly supports the authoritarian public culture because he cannot bring himself to voice his opposition to the way things are done; he remains silent towards arbitrary or unfair decisions and complacently goes along with them, reproducing the public culture of the workplace. This employee is ‘like-minded’ with his colleagues at the office, even if they individually oppose particular policies and decisions, because they interact with each other in ways that sustain the environment in which authoritarian decisions can be imposed on them. However, the power-structures within the office are such that if he were to voice his opinions, he may be demoted or even lose his job. According to the like-minded group model, this employee and his colleagues would be collectively responsible for the authoritarian policies taken by his manager since they jointly reproduce the authoritarian culture that sustains those policies. Nevertheless, this example shows that when the costs of resistance become unreasonably high, it becomes increasingly difficult to justify the burdens of responsibility on individual members of the group, since those costs limit the meaningfully available options for individuals to exercise their agency. According to Miller, ‘[t]he like-minded group model does not depend … on substantive fairness. So long as the group in question is genuinely like-minded, its collective responsibility does not depend on how it allocates power, status, or other benefits among its members.’22 But as the example above shows, power relations among individuals can become external barriers to agents’ ability to exert control over the public culture in which they participate. One of the problems with assign21 22

Miller also recognizes this in the case of individual responsibility but as Pierik (note 20) at 470–1 argues, does not seem to hold this to be the case for collective responsibility. Miller (note 2) 119–20

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ing collective responsibility to nations is that a national culture as such may not possess any mechanisms that ensure such control. A hierarchically ordered public culture that privileges certain social groups over others may work to constrain individual members from opposing or transforming the existing culture which upholds particular patterns in policy outcomes. By contrast, the institutional and normative conditions of citizenship provide both formal and informal mechanisms for individual members themselves to shape and transform their public culture. Since citizenship denotes institutional membership in a democratic state, the formal procedure of voting is the most straightforward way in which citizens have a say over their policies. But the reason why we may also hold individuals who dissent from, or do not give explicit consent to, state policies partially responsible for collective outcomes is that formal democratic institutions also work to equalize power-relations at the societal level. Democratic procedures promote policies that, as far as possible, reflect the interests of all citizens. Moreover, we may assume that the norms of equality and fairness embodied in the idea of citizenship permeate into the public culture. Thus, at the informal level, political and social power relations among citizens in a democratic political community may be more or less structured in a way that prevents power constraints from becoming unbearable external barriers to individuals’ resistance to, or transformation of, the dominant culture.23 Where the empirical reality diverges from this, democratic principles could serve as standards by which to criticize existing social power relations. Miller also argues that the more democratic a nation is, the more likely its members are to be collectively responsible for policy outcomes.24 However, the reason he offers for this is that, in a democratic community, where formal institutions of voting and informal opportunities for public debate are in place, political outcomes are more likely to reflect the genuinely shared beliefs and values of the people which make up the national culture. The problem with this argument is that, as Miller himself points out, we can also argue that the more democratic a nation is, the less likely are its members to be like-minded, since plural positions and preferences surface into public debate, while conversely, there could be high degrees of fit between political policies and the national public culture in authoritarian states where most individuals conform to socially dominant norms.25 According to my argument above, the reason why we can more justifiably place collective responsibility on democratic nations based on the like-minded group model is not necessarily because democratic institutions better represent the public culture, but rather because democratic institutions and norms enable us to blame or praise individual members for their participation in it. The formal and informal mechanisms of a democratic political community offer a degree of choice to individuals either to go along with, or to transform the public culture in a way that enables us to debit or credit them for the policies that stem from it. In other words, democratic institutions and norms 23

24 25

I do not intend to argue that the existence of democratic institutions, by themselves, eradicates oppressive power relations in society, or that all individuals in democracies have sufficient degrees of control over their societal culture. However, I suggest that democratic institutions and the principles embodied in them are likely to contribute to make the societal culture more open and egalitarian than in non-democracies. Cf. Miller (note 2) 130 Cf. Miller (note 2) 128–9

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make individual members outcome responsible, rather than simply causally responsible, for collective outcomes. 3 THE

COOPERATIVE-PRACTICE MODEL

I will now turn to the second model of collective responsibility that Miller applies to nations: the cooperative practice model. According to Miller, individual members of a group may be held collectively responsible when they benefit from ‘a common practice in which participants are treated fairly’.26 Giving the example of dissenting members of a company that decides to adopt an environmentally harmful manufacturing process, Miller argues that if employees are given a fair chance to influence the company’s decisions, they must also be prepared to share responsibility for the external impact of the company’s practice, even if they dissent individually from that policy. The justification for this is that, regardless of whether individual members agree with the company’s policy or not, they equally benefit from being a part of that system. As Miller puts it: ‘They are the beneficiaries of a common practice in which participants are treated fairly – they get the income and other benefits that go with the job, and they have a fair chance to influence the firm’s decisions – and so they must also be prepared to carry their share of the costs, in this case the costs that stem from the external impact of the practice.’27 Unlike the like-minded group model, there is no requirement in the cooperative practice model that members share a common identity or have common aims. However, Miller holds that an important feature of the latter is that individual members must be treated fairly;28 that is, they must have a fair chance at influencing the outcomes, and receive the benefits of cooperation on fair terms – in a way that treats them as moral equals. This fairness is the justification for why it is also fair that they should share the burdens of collective responsibility. Democratic procedures are an example of fair cooperation that fits this model. Citizens are treated fairly because they each have an equal vote to influence outcomes, and they mutually benefit from democratic procedures since the system enables them to influence outcomes in a way that their preferences have a chance to be on the winning side, in the next round, if not now. Thus, citizens are required generally to respect democratic outcomes even if they disagree with them. In addition, they can be held collectively liable for those outcomes since they benefit from the system that respects their interests equally. Miller holds that we can consider nations as cooperative practices when members mutually benefit from the protection of the national culture. According to Miller, ‘nations exhibit the features of a large-scale cooperative practice: each member makes certain sacrifices in order to support a national culture from whose con-

26 27 28

Miller (note 2) 119 Miller (note 2) 119 Although Miller (note 2) at 119–20 holds that the condition of fairness applies only to the cooperative practice model and not to the like-minded group model, I have argued in this paper that the latter also demands fairness conditions in order for us to be able justifiably to hold individual members responsible for collective outcomes.

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tinued existence each is presumed to benefit’.29 A national culture includes ‘features that lend their nation its distinct character – the national language, the physical appearance of cities or landscape, cultural traditions that mark them off from other nations and so forth’.30 Indeed, members of a nation may receive benefits from being part of the nation if they value their national culture and seek to preserve it from external erosion. But the national culture as such does not necessarily ensure that the way in which individual members receive benefits and make sacrifices for its preservation are to be fair. Consider a market-oriented national culture that excessively emphasizes individual ability and competence to survive in such a culture over social equality. Competent and talented individuals according to those standards would receive the most benefits from such a culture, while less gifted or fortunate individuals may bear excessive costs. Miller argues that in such cases, we need to note whether certain minorities are simply opposed to a particular issue while supporting other aspects of the national culture, or whether they want to reject the culture in an across-the-board way.31 Referring to the case of German national identity during the Nazi period, which embodied notions of racial superiority over Jews and other ethnic minorities, Miller notes that it would be absurd to say that Jews are beneficiaries of cooperative practice that sustains such a culture.32 However, if a minority generally subscribes to the national culture, they remain beneficiaries of cooperative practice for which they remain liable.33 In contrast to Miller’s argument, however, whether one subscribes to or values one’s culture overall is a different question from whether one is participant in fair cooperative practice. For instance, a family member can sometimes make large sacrifices for the family relationship which she values, and still receive far from her fair share of benefits from that relationship. Imagine a woman who gives up her career to raise her children and care for her elderly parents. While this woman may derive emotional satisfaction from protecting the family relationship and other family members who she cares deeply about, it is unclear if such a relationship is fair. We should distinguish between, on the one hand, fair cooperative practice – one which distributes the benefits and burdens of cooperation in a way that treats individuals as moral equals – and, on the other, generally subscribing to or valuing the national culture.34 Miller acknowledges the limits of identifying outcome responsibility with nations based on the cooperative practice model, and holds that ‘whether or not we can assign collective responsibility to nations based on that model depends on the 29 30 31 32 33 34

Miller (note 2) 131 Miller (note 2) 131 Cf. Miller (note 2) 133 Cf. Miller (note 2) 132–3 Cf. Miller (note 2) 133 Margaret Moore, Is Patriotism and Associative Duty?, Journal of Ethics, 13, 2009, 383–399 argues that national communities could give rise to associative duties – duties intrinsic to the relationship – because they have moral value as associations that are important for individuals’ well-being: ‘It is not necessary to provide an objective list of the kinds of good produced by nations, or internal to the bonds of attachments felt by co-nationals. We need only to accept that such collective forms of identity are valuable, because important to people and important to their well-being’ (395). In this sense, family relationships would be a source of associative duties rather than duties of cooperative practice.

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extent to which they exhibit features of fairness and mutual benefit etc’.35 But then, whether individual members can claim equal benefits and burdens of cooperative practice seems largely to depend on how just and democratic its social and political institutions are, and little on other distinctive characteristics of the national culture, such as the national language, the physical appearance of cities or landscape, and other cultural traditions. A national culture is helpful for sustaining relationships of fairness to the extent that it lends support to just and democratic norms and institutions. In this sense, the national culture may have a secondary role in cooperative practice, while just institutions governed by norms of fairness have a primary one.36 By contrast to a national culture which may or may not support just and democratic norms and institutions, citizenship is a reciprocal relationship mutually to sustain one another’s equal rights through participating in, and upholding institutions of justice. Hence, citizenship, by definition, is a fair cooperative practice; and to the extent that it is not, would be diverging from its own principles. Thus, while we may assign collective responsibility based on cooperative practice to nations so long as they possess self-determining institutions which are also just and democratic – in other words, if their individual members are also citizens – it may be more difficult to do so in other cases. CONCLUSION In this article, I have sought to assess whether Miller’s like-minded group and cooperative practice models can fairly distribute the benefits and burdens of responsibility to individual group members, and how they can be applied to national membership and citizenship respectively. With regard to the like-minded group model, I have argued that democratic institutions and norms of equality that underlie the idea of citizenship play an important role in identifying collective outcome responsibility for individuals’ participation in the production and re-production of the patterns of beliefs and interactions that make up the public culture. In some sense, a nation seems more appropriate than citizenship as the basis of collective responsibility based on like-mindedness, since a nation is, by definition, a group of like-minded people who share a common public culture, whereas citizenship is a common legal status informed by norms of equality with less emphasis on members’ socio-cultural commonalities. Nevertheless, I have argued that, if we are to see people as outcome responsible – subject to praise or blame – for collective outcomes, they must be reasonably free from external obstacles to resist or transform their public culture, and that a national culture may lack mechanisms that ensure such control on the part of individual members.

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Miller (note 2) 132 Others have also noted that in order to identify duties of cooperative practice or reciprocity among a broad population, formal institutions that ensure reciprocal relations among individuals must be in place. Both Moore (note 34) at 393 and Pierik (note 20) at 480 argue that a nation, as an ‘imagined community’ is too loose as an association that gives rise to duties of reciprocity, while a state – as a set of formal institutions – can ground such obligations.

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In addition, with regard to the cooperative practice model, I have argued that 1) the fact that members value or subscribe to their group culture and relationships does not make it a cooperative practice; and that 2) a national culture may have a secondary role in supporting cooperative practice rather than a primary one. Thus, according to both the like-minded and cooperative practice models, the conditions of citizenship play an important role in distributing the benefits and burdens of collective responsibility to group members in a morally defensible way. Chikako Endo School of Human Welfare Studies Kwansei Gakuin University 1-155 Uegahara Ichiban-cho, Nishinomiya 662-8501 Japan

PART 4 RESPONSE

DAVID MILLER HUMAN RIGHTS

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GLOBAL JUSTICE: A RESPONSE

I should like to begin by thanking my Japanese colleagues for this very stimulating collection of papers addressed to different aspects of my work. Together they raise a great many issues, though often from quite different perspectives. Most of the comments are directed towards positions set out in my book National Responsibility and Global Justice, although several also address the much more specific issue of the conditionality of human rights that occupied my Kobe lecture.1 I will try later on to explain how that issue is connected to the broader themes of the book. I note also that the questions raised about global justice have both normative and empirical aspects. This, it seems to me, is one of the great challenges faced by those working in this field. We need to develop a coherent normative theory of justice beyond the nation-state, while at the same time grappling with difficult and contested questions about, for example, why some societies become rich while others remain poor, the historical effects of colonialism, and so forth. Getting the relationship between these two aspects right is one of the hardest tasks we face. It may be helpful if I begin by setting out three philosophical theses that underlie much of my recent (and not-so-recent) work – theses which may not be widely shared by those working in this field, and which may therefore lead to misunderstanding of my position. The first is the contextual character of principles of justice, and especially of distributive justice. There are indeed certain very basic ways of treating other human beings that justice either forbids or requires regardless of circumstances – such as deliberately injuring another person unprovoked. But when justice concerns the distribution of rights, opportunities, resources, etc. between persons, we need to ask first what is being distributed and in what context, where the context refers to the type of relationship that already exists between the parties to the distribution. The nation-state is one very important context of distributive justice, and much of our thinking about the latter idea derives from our experience as members of such a complex social institution. This is true, for example, of John Rawls’ deservedly influential theory of social justice.2 One main consequence is that when we begin to reflect upon what ‘global justice’ could mean, we have to start by asking about the different kinds of relationships in which people world-wide stand towards one another. There is no presumption that the principles that apply here must be the same as those we use in domestic settings. The second thesis concerns the role that reciprocity both does and should play in our practical reasoning. Much recent moral philosophy is written from what we might call the single-agent perspective. The question asked is about what I am morally obliged to do, with the behaviour of others treated as parametric, and the answers are given by the leading moral theories, with their several variants – consequentialism, deontology, etc. Although this single agent perspective has some place 1 2

D. Miller, National Responsibility and Global Justice, 2007; D. Miller, ‘Are Human Rights Conditional?’, this volume J. Rawls, A Theory of Justice, 1971

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in our practical reasoning, in many circumstances the correct perspective to adopt is that of the agent-among-many-others – each of these agents being in principle equally the bearer of responsibilities and obligations. Reciprocity then appears in two main guises. The first occurs when the treatment I am morally bound to give another person depends on how that person either has treated, or will treat, me. I may have duties to reciprocate acts of goodwill, and equally I may be released from obligations that I would otherwise have towards a person who attacks, cheats or abuses me. The second occurs when some task or responsibility falls upon the shoulders of a group of people, each of whom is capable of discharging their share. What I am required to do in these circumstances may depend on what others also do. Very often I am not obliged to do more than my fair share of the collective task. I may have reason to do more if others fail to contribute, but this is not something that can be required of me. The same reciprocity-based reasoning may apply when instead of individual persons we think of the responsibilities and obligations of collectivities such as states. What each collective agent is required to do may depend on what the others are already doing, or can be expected to do. The third thesis, which is related to the second, concerns the importance of assigning responsibilities, and especially responsibilities to correct injustice. In its second guise, reciprocity presupposes that we have identified the group of people (or states) who together have a responsibility to carry out some task. Once we have done this for the inclusive group, we can begin to think about the fair share of each individual member. But sometimes the first step is itself problematic. We may know that people are suffering from injustice – for example they are deprived of some of their basic rights – without yet knowing who if anybody has an obligation to intervene to put the situation right. To say ‘anyone and everyone who can’ in this context is not usually helpful. We need to avoid casting any agent in the role of universal policeman tasked with responding to injustice wherever it occurs. Instead we need principles to guide us in identifying who bears the primary responsibility for remedying particular cases of injustice. This becomes particularly pressing when the injustice we are responding to arises at global level. Each of these three theses is somewhat controversial, and could no doubt do with more defence than I am able to give it, but for present purposes I want to treat them as starting points from which to address some of the questions raised by my commentators. I shall arrange my remarks under five broad headings. The first concerns the priority I give to national responsibility, as opposed to other forms of collective responsibility, in thinking about global justice. The second concerns the division of responsibility between rich and poor nations, and specifically whether it can ever be appropriate to hold people living in poor countries responsible for their own fate. The third concerns the meaning of justice itself at global level. The fourth concerns my needs-based theory of human rights. And finally, there is the issue of whether human rights can ever be forfeited, and if so which ones are potentially forfeitable and which are not – the topic of my Kobe lecture. To begin, then, do I overstate the role that nations and national responsibility should play in our understanding of global justice? Clearly nations are not the only collective agents whose behaviour matters for promoting justice world-wide. Hasegawa points particularly to the role that various voluntary organizations play in this field, as well as international institutions such as the UN. However if we think

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for the moment simply about the protection of human rights (which I assume must feature prominently in any plausible account of global justice), it quickly becomes apparent that it is nation-states that have by far the biggest impact, whether in the form of providing for these rights by the resources they can deploy to protect people’s rights to security, subsistence, education, health care, and so forth, or conversely violating them on a massive scale when they turn their weapons upon their own people or upon the citizens of neighbouring countries. Non-governmental associations have an important role to play in filling in the gaps, particularly in lessdeveloped countries, but there is not much they can do when faced with state failure or oppression. International organizations can also make a significant contribution by co-ordinating the actions of individual states, but they can only do this on condition that the states in question are willing to comply. I write this at a time when a human rights tragedy is unfolding in Syria as it descends into civil war, and what must strike any observer is the impotence of international bodies, especially the UN, in a situation in which there is deep disagreement between member states about what should be done, and as a result no effective international force can be deployed to resolve the conflict. Of course one could respond to this and other similar cases by arguing that what is needed are stronger forms of global government. This is a large question that I have addressed elsewhere3, but the present point is that if we are interested in identifying responsible agents in the world as it actually is today, then it is not arbitrary to focus our attention on nation-states. Ishiyama, however, suggests that we need to distinguish more sharply between ‘nation’ and ‘state’, pointing to the existence of multinational states, and of undemocratic states. Both of these cases present challenges to the assumption that when we attribute responsibility to states, we are also attributing it to the members of the nations that inhabit them. Now I concede in my book that in the case of states that lack democratic constitutions, it is always going to be more problematic to make justifiable assignments of national responsibility. We have to show that the policies pursued by state officials are in some sense a reflection of national values and priorities even though these officials are not formally accountable to the people. The issue here is how far these states are governed by force and/or manipulation, and how far by tacit consent. In some cases, I believe, valid attributions of national responsibility can be made. Consider the case of China, and consider its current policy of seeking to secure its access to large quantities of natural resources (for example it now holds over 90% of the existing world stock of rare earths). This policy, evidently, is driven by China’s perception of its future economic needs. But it would be hard to deny that this chimes with the desire of the Chinese people as a whole for sustained economic growth that would allow more of them to enjoy the lifestyle currently enjoyed by the urban middle class. There is nothing wrong with this aspiration in itself, but it may bring with it responsibility for the side-effects of China’s resource acquisition policy, and this I suggest does not belong to state officials alone. Although they are not democratically elected, their continuing claim

3

I am sceptical about the claim that what is needed is some form of global democracy. See D. Miller, ‘Against Global Democracy’ in K. Breen and S. O’Neill (eds.), After the Nation: Critical Reflections on Post-Nationalism, 2010.

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to authority depends upon their ability to deliver steadily increasing living standards to the population at large. I also concede that where states are multinational, this complicates ascriptions of collective responsibility. But I do not know how many genuinely multinational states we would be left with in the world today once we discount a) states whose citizens have ‘nested’ national identities, where inclusive national identities co-exist more or less peacefully with (sometimes more intense) sub-national identities, as in the case of the UK or Canada, and b) states in which a majority national identity subsumes a range of minority ethnic identities, often the result of immigration, as in the case of Japan or France. The reason for my doubt is that if a state really is multinational, in the sense of housing two or more nations with completely separate identities, it is likely to be unstable; unless forcibly suppressed, there will be strong pressure to secede coming from any minority nation that believes it can do better, economically or culturally, by going it alone. Even if we leave these more complex cases aside, there is still the question, very clearly pressed in Endo’s paper, of whether collective responsibility is not better attributed to co-citizens than to co-nationals. In other words, the source of responsibility is better seen as political – participating as equals in the making of public policy – than as cultural – sharing beliefs and attitudes with compatriots that together inform public policy. Endo is right to say that citizenship can be an independent basis for assigning responsibility; the issue is whether it can wholly replace national responsibility. Notice that in both cases, we have to address the case of the dissenting individual – the person who votes and protests against the policies supported by the majority, and the person who claims not to share any of the traits that make up the national culture, respectively. Under what conditions is it fair to include such a person in collective responsibility? Switching from nationality to citizenship does not enable us to avoid this difficult question. What Endo claims on behalf of citizenship is that it is egalitarian in a way that nationhood is not. National cultures, she says, may be controlled from the top down. Yet democratic politics also is liable to degenerate into ‘democratic elitism’ where the amount of control that ordinary citizens can exercise over policy choices is minimal. My own view is that national cultures have become more ‘democratic’ than Endo allows; they have been increasingly shaped by popular opinion over which elites have only a limited influence. Of course this itself is partly the result of democratisation at the political level. So we do not disagree about the importance of democratic citizenship. What may divide us is how far citizenship itself, as a political practice and not merely a formal status, depends upon national identity as the ‘glue’ that holds citizens together and makes them willing to co-operate and compromise with each other. (This also indicates how I would respond to the discussion of citizenship and nationality in Tomisawa’s paper.) These arguments apply most clearly to developed liberal democracies. When we are thinking about global justice, a major question is whether ideas of collective responsibility can also be applied to poor states, which partly by virtue of their poverty are unlikely to support democratic regimes. I suggested above, with reference to the case of China, that having such a regime was not a necessary condition of collective responsibility. Nevertheless, it may be argued that poor societies, whatever their internal political structure, are trapped within a global economic and political order

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that denies them adequate opportunities for development. Under these circumstances, to hold the inhabitants of these societies responsible for their own deprived condition, and thereby remove responsibility from the shoulders of wealthy states, looks cynical and self-serving. This criticism is pressed by both Kamishima and Ishiyama, but developed at greatest length by Inoue, so I shall focus on his version of the case. Inoue begins by challenging me on the idea of a ‘justice gap’ between what people in poor countries can legitimately claim from the global rich and what citizens of rich countries are obliged to sacrifice to meet this claim. In my account, the problem arises not from any practical problems in transferring resources from rich to poor countries (though I continue to believe that these problems are much more intractable than one would gather from reading most of the philosophical literature on global justice), but from the idea, referred to above, of a division of responsibility between nation-states. So, confronted with a country in which many people are living with fewer resources than are needed to meet their human rights, the first question we have to ask is about how this situation has arisen and who is responsible; at this point we cannot exclude the possibility that responsibility lies mainly with the deprived people themselves – I shall return to this issue shortly. But suppose that in fact this is not the case. The next question is how to allocate remedial responsibility between the various actors who might able to provide the resources that are needed. This is not a straightforward matter, because, as I argue in the book, there are multiple criteria for making the allocation, and also problems in estimating the costs that a particular state would have to bear in providing the necessary aid (which might involve much more than a simple financial transfer). This creates a zone of indeterminacy in which each state can reasonably claim that it is discharging its fair share of responsibility, but when these shares are added up, they fall short of what is needed in total – hence the possibility of a ‘justice gap’. I don’t dispute that political leaders will exploit this possibility in order to reduce their country’s share of responsibility below the level that can reasonably be defended. But this sorry fact does not show that a justice gap cannot exist. What I am denying is that there is a definitive way of assigning remedial responsibilities for global poverty such that we could say exactly what each state is required to do as a matter of justice, with the result that we could in principle be justified in forcing reluctant states to make their contribution as so defined. So far I have looked at the issue of responsibility as it applies to rich states. What about the collective responsibility of people in poor countries for their own condition? Here the main issue is the one that is raised by Thomas Pogge under the heading of ‘explanatory nationalism’.4 It is important to get this issue into proper focus, since it may not be clear exactly where the disagreement between Pogge and myself occurs. We both agree that the explanation for instances of global poverty has partly to do with factors that are internal to the poor society itself (such as a corrupt political system) and partly to do with features of the global order that affect the way that the first set of factors operates to reproduce poverty. Nor do we disagree about the particular features of the global order that Pogge has repeatedly singled out as (partial) explanations of poverty – the so-called resource and borrowing privileges, 4

See T. Pogge, World Poverty and Human Rights, 2002, ch. 5.

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which are nicely explained in Urayama’s paper; we agree that these are unacceptable features of the current order that create incentives for the political elites of poor countries to cream off resources that could otherwise be used to combat poverty. Where we appear to disagree empirically is about the relative weight to be attributed to the two sets of factors. I am much more impressed than Pogge seems to be by the burgeoning body of literature on the internal causes of wealth or poverty5, and also by the evidence before our eyes of relatively high growth rates achieved in recent years by developing societies scattered across the globe (including several in sub-Saharan Africa) – not just in the so-called ‘Asian tigers’ which Pogge tends to dismiss as necessarily exceptions to the rule.6 These growth rates are the more remarkable because they have been achieved under an international order which, as I have just noted, both Pogge and I agree to be unacceptable in important respects.7 Now this empirical disagreement has normative consequences, because if one starts with the proposition that a just international order must be one that provides all societies with adequate opportunities to develop and lift their citizens out of poverty, then it is surely relevant when looking at the current order to examine how different societies actually fare under it. The greater the proportion that are able to develop rapidly, the more likely it is that even those that failed to do so nevertheless had an adequate opportunity. This was the point of the ‘roundabout’ analogy that exercises Inoue. If there are many crashes on a roundabout, we are justified in concluding that the roundabout’s design was faulty; if there are only a few, it seems reasonable, pending further investigation, to assume that these are the responsibility of careless drivers. The fact that traffic lights might have been installed instead, producing long queues of frustrated drivers but no crashes, does not make the road engineers responsible for the crashes that occur in the latter case. Finally I need to say a word here in reply to Inoue’s remarks about colonialism and nationalism. It seems to me to make no sense to try to deliver an overall moral verdict on such an enormously variegated and historically extended phenomenon as Western colonialism. In the course of that history we can find examples of gross cruelty and rampant exploitation, but also of successful economic development, and the creation of political, administrative and judicial institutions which laid the foundations of modern independent states. I would indeed argue, as Inoue predicts, that the British colonial legacy (especially the civil service and the system of independent courts) is at least in part responsible for India’s capacity to sustain a stable democracy; the fact that this democracy has a poor record in redistributing the fruits of economic growth has much to do with the role of caste divisions in preventing the emergence of an inclusive political movement representing India’s impoverished masses – so I suppose one could argue that the British should have done more to demolish the caste system (as it happens defended, at least in qualified form, by both Gandhi and Nehru); but this is a speculative judgement. I do not see 5 6 7

See, among many others, D. Landes, The Wealth and Poverty of Nations, 1998; D. Rodrik, One Economics, Many Recipes: Globalization, Institutions and Economic Growth, 2007; P. Collier, The Bottom Billion: Why the poorest countries are failing and what can be done about it, 2007. See T. Pogge, ‘Priorities of Global Justice’ in T. Pogge (ed.), Global Justice, 2001, 17–18. I also agree here with Urayama’s point that, when it comes to reforming the rules of the international system, greater responsibility should fall on the shoulders of the richer countries who have already done well out of it.

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the inconsistency involved in a defender of liberal nationalism offering a balanced appraisal of the strengths and weaknesses of colonialism. A liberal nationalist does not have to make the implausible claim that the liberal nation-state is everywhere a possibility; on the contrary it has quite demanding sociological preconditions. Where these do not obtain, one should look for forms of government that do a reasonable job in protecting human rights. As noted above, the record of colonial governments in this respect is very far from perfect; but so is the record of the main alternatives. These points about colonialism are worth making only because anti-colonial rhetoric is so often used today to deflect attention away from present-day practices in poor societies that hinder development and thereby perpetuate poverty. They are not intended to reduce responsibility for specific acts of historical injustice for which reparation can be demanded from the former colonial powers, nor indeed to diminish the special responsibilities that these powers have towards their ex-colonies simply by virtue of their historical connections and regardless of injustice. If global poverty is our concern, our first step must be to get as clear a view as possible of its real causes, before turning attention to the ethical problem of distributing responsibilities. I turn now to the question of how we should understand the very idea of ‘global justice’. Itoh in his paper suggests that the position I adopt is better described as ‘international justice’ than as ‘global justice’ because of the importance it attaches to the way that nations treat each other. This suggestion contains a good deal of truth, but not the whole truth. If we use the term ‘global justice’ expansively to refer to all claims of justice that arise above and beyond the nation-state, then we need to consider the claims both of individual people on one another and on states other than their own and the claims that nation-states have against one another. If we reserve the term ‘international justice’ for the second set of claims, then it follows immediately that international justice forms one part of global justice. It is important to note that international justice understood in this way really is a separate sphere of justice. For example, legitimate states, and their citizens, have territorial rights that would be unjustly invaded if a neighbouring state decided to take control of part of the territory in question, even if that second state did nothing to interfere with the just claims of individual citizens. To some extent, we can say the same about trade relations between states: there are norms of non-discrimination and equal treatment that apply to the agreements that are reached at the collective level over the rules that will govern trade. These are principles of international justice. However we have also to consider the impact that following these rules will have on the just claims, and especially the human rights, of individual people. So here we move into the realm of global justice in the narrower sense. This makes the idea of ‘fair trade’ normatively complex, as I have tried to show elsewhere.8 My suggestion, then, is that we need to think simultaneously about fairness in the way that nation-states treat each other and about what is owed to individual people at global level if we are to understand ‘global justice’ in its wider sense cor8

See D. Miller, ‘Was bedeutet “Fair Trade” und warum ist er wichtig?’ in R. Kreide, C. Landwehr and K. Toens (eds.), Demokratie und Gerechtigkeit in Verteilungskonflikten, 2012. A slightly shorter version of this paper will appear in English as ‘Fair Trade: what does it mean and why does it matter?’ in J. Pearson (ed.), Fair Trade and Global Justice: Theoretical Perspectives, forthcoming.

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rectly. Focusing now on the second issue, and applying the contextual approach to justice outlined above, the first step is to decide how best to characterise the relationships that hold between people who belong to different political communities. Sakurai raises the question when he asks whether and in what sense I recognize the existence of ‘international society’. There is no easy answer to this question. ‘Society’ is a term with no precise meaning, and so there is a danger if we talk about ‘international society’ that we will carry across features with which we are familiar in domestic societies and assume that they can also be found at international level. Equally, it would be silly to deny that there are quite dense networks of interaction, economic, cultural and political, that now exist across international borders. The right approach is surely to examine these networks in order to isolate their distinctive features, and then to consider what demands of justice apply to them. For example, when nations agree to act together to solve some global problem such as the plundering of the oceans for their dwindling stocks of fish, there will be a question about how the costs and benefits should be distributed when the agreement is drawn up. In this case, if less (wild) fish has to be consumed overall, then the cut in consumption has to be distributed fairly, taking account, for instance, of cases where people have become dependent on eating fish to provide their basic nutritional requirements (thus ‘equal sacrifice’ measured in terms of volumes of fish may not be the right principle here). Hasegawa suggests in his paper that global problems such as this should be handled from ‘a transnational egalitarian perspective’. If that means simply that equal consideration should be given to the claims of each nation affected by the problem, then I agree, but it does not follow that the solution must involve the application of a principle of equality. It may in some cases: for example, I have suggested elsewhere that a qualified equal sacrifice principle is what justice requires when it comes to distributing the costs of reducing greenhouse gas emissions.9 A contextual approach to justice will take each form of global interaction in turn and ask which principle (or principles) of justice we should apply to it. There is a sharp contrast here with ‘global egalitarians’ who believe that we should apply some general principle such as equality of resources or equality of opportunity globally to decide such issues. As I mentioned earlier, however, not all of the demand of justice are contextually specific. One that is not is respect for human rights, which must accordingly be given a central place in any defensible theory of global justice. The dispute here is not about the importance of human rights, but how best to understand and justify them. Kamishima and Se both address this question in some detail. Kamishima suggests that my understanding of human rights is ‘anaemic’ because it is not grounded in a particular moral theory such as utilitarianism or Kantianism. However it seems to me that it is a strength rather than a weakness of an account of human rights if it is able to avoid such a grounding, because moral theories such as these are not only disputed, but specifically linked to the Western philosophical tradition. My aim was to find a way of justifying human rights that anyone whatever their cultural background should be able to accept. My belief is that human needs, properly understood, can provide such a justification. I am puzzled why Kamishima should think 9

D. Miller, ‘Global Justice and Climate Change: how should responsibilities be distributed? Parts I and II’, Tanner Lectures on Human Values, 28 (2009), 119–56.

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that this approach is based on European experience. The intention was to begin with something called ‘the human form of life’ by identifying practices that were reiterated, albeit in different forms, in all human societies. Thus the practice of educating children forms part of the human form of life, even though in more developed societies this happens through formal schooling while in less developed ones it may involve children being informally apprenticed while working alongside adults. There are certain basic needs that must be fulfilled if a person is to engage in such practices, and these are the ones I label human needs. Again ‘need-satisfiers’, as they are sometimes called, may vary from place to place (think of the need for food) while the need itself does not. So the aim at least was to get beyond European experience and ground human rights in universal features of human life. Kamishima suggest that the capabilities approach defended by Amartya Sen and Martha Nussbaum may do a better job here. I should be the first to concede that there is likely to be a considerable degree of overlap between the list of basic capabilities that these authors identify and my list of human needs. Nevertheless, I continue to think that the needs approach is superior, for two reasons. First, it focuses attention on what is really essential to a decent human life as opposed to what one might think was constitutive of a good human life. The difference comes out when we observe items that appear on Nussbaum’s list that would not appear on mine, such as ‘being able to live with concern for and in relation to animals, plants, and the world of nature’.10 This introduces a value-judgement that takes us beyond the idea of a minimally decent life as such: are we to say that those who live today in urban environments that give them no opportunity to have the kind of relationship to the natural world that Nussbaum describes cannot live decent lives, even if we think that their lives would be improved by having such contact? Second, defenders of the capability approach make much of the fact that it internalises the value of choice: what matters is not the condition that someone is actually in, but the condition they could be in (or the goal they could achieve) if they so chose. This emphasis on the value of choice is highlighted in a sentence of Nussbaum’s that Kamishima cites: ‘the person is imagined as having a deep interest in choice, including the choice of a way of life and of political principles that govern it’.11 This, it seems to me, does reveal a strong Eurocentric, or more generally liberal, bias.12 Nussbaum accurately describes a person who has been raised in a liberal society where choosing one’s way of life is of paramount importance, but wrongly assumes that this must hold for people everywhere. On the contrary, it seems to me that a person can lead a decent human life in a traditional society where there is no opportunity to choose one’s way of life as a whole, so long as that way of life is itself sufficiently rich and the person has the resources and freedoms needed to engage in it. Se’s concern is rather different from Kamishima’s. He suggests that we cannot understand concepts such as ‘human needs’ and ‘human decency’ without approaching them through the prism of a particular local culture. He highlights the way in which Japanese conceptions of the self, and of self-realization, differ from Western conceptions, and he argues that these differences can be brought out only 10 11 12

M. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership, 2006, 77 Nussbaum, Frontiers of Justice, 88. Indeed Nussbaum herself immediately goes on to remark that ‘this is one of the ways in which the capabilities approach is part of the liberal tradition’.

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through the use of concepts present in the Japanese language. So he recommends a version of the intersection approach in which each separate culture develops an account of human needs using the resources of its own language, and we then compare these accounts in order to identify ‘the reasonable core’ of human needs. Let us accept his premise that in Japanese culture self-realization is understood differently than in Western culture. Why should this affect the way in which human needs are understood? In speaking of needs, we are operating at a much more basic level. This is obvious enough when one thinks of bodily needs, but even if one thinks of the needs of humans as social animals, such as the opportunity to associate with others, to express oneself freely, and so forth, it looks as though these are needs that a person will have whatever precise form of self-realization he or she aspires to. If I contemplate somebody who is confined within their house, or forced to participate in religious rituals whose validity she does not recognize, I do not have to know what conception of the self that person has in order to judge that her needs are not being fulfilled, and her human rights are being violated. I think that in this part of his argument, Se may overlook the distinction I draw between human needs and societal needs; the latter require us to understand what it means to be a fully-functioning member of a particular society, and it may well be that this cannot be done without reference to understandings of human life that are culturally specific, and therefore only accessible via the local language. I have certainly no quarrel with Se’s defence of national languages, nor indeed with his argument about the importance of non-Western forms of nationalism. I am puzzled that he should think I want to export liberal institutions from the West without recognizing their nationalist underpinnings, since that is almost the exact opposite of what I actually believe. As I noted earlier, I regard liberalism as having quite demanding social and cultural preconditions. The final topic I want to address is the conditionality of human rights. It may seem surprising that having made the protection of human rights central to my understanding of global justice, I should immediately go on to ask whether there are circumstances in which these rights can be forfeited. Recall however that my second general thesis about justice concerned reciprocity, and the role that it both does and should play in our practical reasoning. If one accepts that thesis, one cannot avoid asking whether it does not apply to human rights as well: do we hold them only on condition that we respect the human rights of others, or do we hold them unconditionally, such that others are bound to respect our own no matter how we behave? I was dissatisfied with the answers to this question found in the existing literature, and resolved to try to give a better one. Let me say at once, however, that I was concerned about cases in which individual people might be judged to have forfeited (some of) their human rights; I did not consider it at all likely that this would apply to large aggregates of people, such as nations. And in fact the answer I give, although it does not make it conceptually impossible that all the members of a large group should forfeit their rights, shows why this would never apply in real cases. But is the problem I was grappling with in the Kobe lecture a real one? Takikawa suggest that we do not need to invoke the idea of forfeiture in order to explain why, for example, it is permissible to imprison those who have committed serious crimes: we should say instead that in such cases their human rights are overridden by our concern for the rights of others, or for public welfare. Now I can envisage cases in

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which we would want to say that one person’s human rights are overridden by the (more urgent) rights of others. For example, in the aftermath of a large-scale natural disaster when many people are injured, we might be justified in compelling doctors or rescue workers to come to the scene (supposing they were unwilling) and for a short time to work unreasonably long hours to save the injured; this would involve some overriding of their human rights. Here there is a direct connection between the rights that are being protected and the rights that are being infringed. But nothing like this applies in normal cases of imprisonment. It is not the case that the rights of others can only be safeguarded by removing some of the criminal’s. It may be true, as Takikawa suggests, that legal rights are best understood as having conditionality built into them: one enjoys the right only so long as in exercising it one does not break the prevailing law. But human rights cannot be understood merely as legal rights. They have a moral grounding: they are supposed to provide the conditions under which human beings can lead decent lives. To say that they can be overridden whenever there is a strong public interest in punishing the right-holder neglects this essential feature. As Takikawa points out, it follows from my account of rights-forfeiture, as occurring only when the right-holder acts in such a way as to reveal a settled disposition not to recognize the human rights of others, that people cannot forfeit their human rights by committing ‘victimless’ crimes such as using illegal drugs. How embarrassing is this for my view? Note that such people could still be punished in ways that remove some of their legal rights, but not their human rights: they could be fined, for example, or made to perform acts of community service. But to imprison them for substantial periods of time would be a human rights abuse, according to my theory. I think that this gives the correct answer: we should be morally troubled by this possibility, and contemplate it only in exceptional circumstances, perhaps in a case where a heroin epidemic was destroying many lives, and it seemed that the only way to check its spread was to start imprisoning users. I come finally to the question of how reciprocity and human dignity are related in my account of human rights conditionality. I had originally hoped that all the work would be done by the idea of reciprocity, once that had been suitably clarified, and rescued from the cruder version that I found in Locke. The key move was to argue that we must treat some human rights as unconditional no matter what the right-holder does, because we want to preserve the conditions under which relations of reciprocity with that person can be restored even though they have been destroyed in the short term. Aside, perhaps, from some extreme psychopaths, even the worst offender is still a human being with a moral sense with whom we can hope to engage in reciprocal relationships in the future. I was forced by several critics to concede, however, that this could not explain why some ways of treating human beings were never permissible, even though they would not block the way to future re-engagement. The central cases are forms of treatment that express simple contempt for the victim: urinating on a prisoner, for example. Although psychologically damaging, it cannot be said that the damage caused is so great that the person will typically be unable to lead a minimally decent life thereafter. So how are we to explain that the human rights that are violated in cases such as this are unconditional? The obvious answer is to say that there is an underlying right to be treated with dignity that limits the scope of reciprocity: whatever rights one forfeits, one

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does not forfeit that one. But unfortunately this answer does not really satisfy me. It seems to redescribe the problem rather than to solve it. Although it is not difficult to see how a ‘right to dignity’ fits in to the wider idea of a minimally decent life, we do not yet know why this right should be held unconditionally while others are subject to forfeit. It cannot be explained by the subjective importance of the right: I expect that many prisoners would be willing to undergo an episode of degrading treatment in return for a significant shortening of their sentence. Yet we do not think this would be a permissible bargain to propose. So our intuitions about particular cases are quite clear, and we can express them using the language of ‘offences against human dignity’, but I am not convinced that we have explained very much. When we imprison a person for a considerable period, we deny them many of the components of a minimally decent life: freedom of movement, freedom to work (other than under the most restrictive conditions), freedom to form intimate relationships and have a family life, etc.: why do these not also count as offences against human dignity? The concept is not determinate enough to draw a line in the place it would need to be drawn to distinguish unconditional human rights from conditional ones. I feel, therefore, that the essay that opens this symposium solves one problem in a reasonably satisfactory way, but only to raise another that has not been resolved (to my satisfaction anyway). I believe that it does explain why, despite the paramount role that human rights play in our moral and legal thought (and in my own theory of global justice), it is nevertheless permissible on some occasions to remove them. But it does not fully explain why and where we draw the line between the rights that can be taken away and those that cannot. The issues here seem to me to be quite deep, and it was perhaps too much to expect that they could all be handled within a single essay; the same applies to the many probing questions raised in the commentaries that remain unanswered in this response.

LIST

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CONTRIBUTORS

Tetsu Sakurai is Professor of Contemporary Jurisprudence at the Graduate School of Intercultural Studies, Kobe University. His most recent articles are “Is a Human Right to Democracy justifiable?,” Philosophy Study 3 (2013), and “Should Society Guarantee Individuals a Right to Keep “Normal Functioning”? A Genetic Minimalist Approach in a Globalized World,” in M. Albers, T. Hoffmann and J. Reinhardt eds., Human Rights and Human Nature, Springer, forthcoming. He is also the author of a book in Japanese Liberal Eugenics and Justice, Kyoto: Nakanishiya, 2007. He can be reached at [email protected]. Makoto Usami is Professor of Philosophy and Public Policy at Kyoto University and Adjunct Professor of Law and Philosophy at the Tokyo Institute of Technology. He is the author of three books and over forty journal articles and book chapters, including “Intergenerational Justice: Rights versus Fairness,” Philosophy Study 1 (2011), “Global Justice: Redistribution, Reparation, and Reformation,” ARSP Beiheft 109 (2007), and “Retroactive Justice: Trials for Human Rights Violations under a Prior Regime,” in B. Leiser and T. Campbell eds., Human Rights in Philosophy and Practice, Ashgate, 2001. He can be contacted at usami. [email protected]. David Miller is Professor of Political Theory at Nuffield College, Oxford. He has written on a wide range of questions in political theory and philosophy. His recent books include On Nationality (1995), Principles of Social Justice (1999), Citizenship and National Identity (2000), National Responsibility and Global Justice (2007) and Justice for Earthlings: Essays in Political Philosophy (2013). His current research is focused on human rights, territory and immigration, but he also continues to work on the question of how the boundaries of distributive justice are set. Katsu Tomisawa is Professor of Political Theory at the Faculty of Law, Doshisha University. His most recent publication is an edited book in Japanese, Re-examination of Liberal Nationalism, Kyoto: Minerva Shobo, 2012. Hirohide Takikawa is Professor of Philosophy of Law at the College of Law and Politics, Rikkyo University. He is coeditor of Judicial Minimalism: For and Against (ARSP Beiheft 132, 2012). His recent articles include “Particular Political Obligation and Universal Legal Duty,” in T. Bustamante and O. Onazi eds., Global Harmony and the Rule of Law (ARSP Beiheft 130, 2012), “Conceptual Analysis of Accountability: The Structure of Accountability in the Process of Responsibility,” in S. Kuyama and M. R. Fowler eds., Envisioning Reform: Enhancing UN Accountability in the Twenty-first Century, United Nations UP, 2009 and “Can We Justify the Welfare State in an Age of Globalization? Toward Complex Borders,” ARSP 92 (2006). He can be contacted at [email protected]. Tatsuo Inoue is Professor of Legal Philosophy at the Graduate Schools for Law and Politics, the University of Tokyo. He has written seven books, including the re-

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cent publication on Global Justice, and many papers in Japanese. Among his main publications in European languages are “Justice,” in B. Badie et al. eds., International Encyclopedia of Political Science, vol. 5, 2011, “Le libéralisme comme recherche de la justice,” in Revue philosophique de la France et de l’étranger 201 (2011), “Constitutional Legitimacy Reconsidered: Beyond the Myth of Consensus,” in Legisprudence: International Journal for the Study of Legislation, vol. 3, (2009), and “Liberal Democracy and Asian Orientalism,” in D. A. Bell and J. Bauer eds., The East Asian Challenge for Human Rights, Cambridge UP, 1999. He can be contacted at [email protected]. Ko Hasegawa is Professor of Philosophy of Law at Hokkaido University. He is the author of several books and various articles and book chapters in Japanese, as well as several articles in English, such as “Human Well-being and Public Provision,” Hokkaido Law Review 54 (2004) and “Incorporating Foreign Legal Ideas through Translation,” in A. Halpin, et al. eds., Theorizing the Global Legal Order, Hart Publishing, 2009. He can be contacted at [email protected]. Fumihiko Ishiyama is Professor of Jurisprudence at Chuo University, Tokyo. He is coeditor of Universal Minority Rights? A Transnational Approach (ARSP Beiheft 96, 2004), the editor of Warming Up for Legal Studies, Nakanishiya, 2010, and the author of numerous articles including “Language Policy and State Neutrality,” in T. Inoue, I. Shimazu, and Y. Matsuura eds., The Law at a Critical Point, vol. 3, University of Tokyo Press, 1999, and “Will Kymlicka and Multiculturalism as a Theory of Justice” (a series of six articles), The Journal of the Association of Political and Social Sciences 113–115 (2000–2002). He can be contacted at [email protected]. Yuko Kamishima is Associate Professor of Philosophy at Chuo University in Japan. Her research focuses on the historical and contemporary justifications of justice and democracy. She has written on a wide range of issues, including “Liberalism and Sustainable Global Justice,” Waseda Global Forum, (2008) and “Consumerism and QOL in Singapore: A Critical Assessment of the Capability Approach,” Journal of Political Science and Sociology (Keio University) (2006). Her most recent work in Japanese is: Martha Nussbaum: A Philosophy of Human Cultivation, Chuokoron-shinsha, forthcoming. She can be contacted at [email protected]. Yasuhiko Itoh is Professor of the Graduate School of Humanities and Social Sciences, Nagoya City University. He is the author of two books in Japanese, Is Neglect of Poverty to be Blamed? Kyoto: Jinbun-shoin, 2010 and Mean Mind: Philosophical Inquiry into Justice, Tokyo: Shincho-sha, 2012. Teruhisa Se is Associate Professor of Political Philosophy at Kyushu University, Japan. He received his M. Phil. in politics from the University of Sheffield, UK and LL. D. from Keio University, Japan. His main research interests lie in liberal nationalism and human rights theory. His publications in English include “A Conception of Human Rights Based on Japanese Culture: Promoting Cross-

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Cultural Debates,” Journal of Human Rights 3 (2004) (coauthored with Rie Karatsu). He can be contacted at [email protected]. Seiko Urayama is Lecturer at the Faculty of Law, Seijo University. She received her LL. D. at the University of Tokyo. Her research mainly focuses on immigration justice and global distributive justice. Her publications include “Open Borders and Global Distributive Justice,” which appears in the 25th IVR World Congress LAW SCIENCE AND TECHNOLOGY, Frankfurt am Main, August 15–20, 2011, Paper Series No. 058 / 2012 Series B Human Rights, Democracy; Internet / intellectual property, Globalization (URN: urn:nbn:de:hebis:30:3-249164). She can be reached at [email protected]. Chikako Endo is Assistant Professor at the School of Human Welfare Studies, Kwansei Gakuin University. Her publications include “What the Publicity Condition Means for Justice,” Politics 32 (2012), and “Social Cooperation and the Boundaries of Democracy,” The Annuals of Japanese Political Science Association 2011-I (2011). She can be contacted at [email protected].

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Global justice has been one of the hottest issues among legal and political philosophers in the past several decades. David Miller, Professor of Political Theory at Oxford University, is without doubt one of the theorists who have been taking the lead in the debate on global justice. In the summer of 2011 he was invited to give the tenth Kobe Lecture “Are Human Rights Conditional?”. The lecture, eleven comments on the lecture and his celebrated book National Responsibility and Global Justice, and his response to them are included in this volume. The title of the volume, Human Rights and Global Justice,

represents our shared belief that guaranteeing basic human rights is an essential element of global justice. It is quite interesting to examine how the subject of his lecture, human rights, has come out of his intense study on global justice. What brought Miller to the examination of the conditionality and reciprocity of human rights in this lecture soon after criticising cosmopolitanism in his theory of global justice? What kind of reactions does his multifaceted theory of global justice and human rights cause in Japan? This volume gives the key to address these intriguing questions.

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